United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Michael Adam Bailey has filed a petition for habeas corpus
pursuant to 28 U.S.C. § 2254. (DE# 1). Petitioner is
proceeding pro se and in forma pauperis.
Petitioner is a state prisoner and thus, is entitled to the
benefit of the holding in Houston v. Lack, 487 U.S.
266 (1988) (prisoner's pleading was deemed
“filed” when delivered to prison authorities for
forwarding to the court). Under Local Civil Rule 73.02(B)(2)
of the United States District Court for the District of South
Carolina, pretrial proceedings in this action have been
referred to the assigned United States Magistrate Judge.
Having carefully reviewed the record and applicable
authority, the Magistrate Judge recommends that the Petition
is untimely and should be dismissed with prejudice
for the following reasons:
2005, a Horry County Grand Jury indicted Petitioner on state
criminal charges, including murder. (DE# 1-1 at 50-51). After
a jury trial in the Horry County Court of Common Pleas, the
jury found him guilty of murder. The other criminal charges
(armed robbery, kidnapping, burglary) were disposed of by the
prosecutor's entry of “Nolle
Prosequi.” The state court judge sentenced Petitioner
on September 13, 2007 to thirty (30) years of imprisonment.
On direct appeal, the South Carolina Court of Appeals
affirmed the conviction by unpublished opinion on June 10,
2010. (See State v. Bailey, Op. No. 2010-UP-306
(S.C.Ct.App. June 10, 2010); and see DE# 1-1 at 10, copy of
appellate opinion). In his petition, the Petitioner does not
indicate that he sought rehearing within fifteen days. See
South Carolina Appellate Court Rule (“SCACR”)
221. He does not indicate that he filed a petition for writ
of certiorari in the Supreme Court of South Carolina
regarding his direct appeal pursuant to SCACR 242(c). (DE# 1,
¶ g). Petitioner acknowledges he did not seek further
review from the United States Supreme Court. (DE# 1, ¶
10, 2011, Petitioner (through counsel) filed an application
for state post-conviction relief (“PCR”). After a
hearing,  the state court denied relief on January
30, 2014. Petitioner (through counsel) filed a
petition for certiorari (DE# 1-1 at 12-34), which the Supreme
Court of South Carolina denied on November 3, 2015 (DE# 1-1
at 49, Order). According to public records, the remittitur
was filed on November 23, 2015. In South Carolina, an appeal is
final when the remittitur is filed in the circuit court.
See Beatty v. Rawski, 97 F.Supp.3d 768, 780 (D.S.C.
July 12, 2015), appeal dism'd by 633 F.App'x
832 (4th Cir. Feb. 29, 2016); Drake v. Boulware,
Case No. 8:15-cv-04658-RMG-JDA, 2016 WL 6304679, *2 (D.S.C.
Oct. 27, 2016). The AEDPA's statute of limitations
remained tolled until the date remittitur is filed. See,
e.g., Rivera v. Lewis, Case No. 5:16-00837-MGL-KDW,
2016 WL 7367948, *11 (D.S.C. Nov. 9, 2016), adopted
by 2016 WL 7338715 (D.S.C. Dec. 19, 2016); Lyles v.
Reynolds, Case No. 6:15-cv-4229-RMG-KFM, 2016 WL
4940319, *3 (D.S.C. Sept. 14, 2016).
November 3, 2016, Petitioner's mother (Rose Bailey) filed
a federal habeas petition on behalf of her son. (DE# 1,
totaling 157 pages). The Petitioner was not signed by the
Petitioner, but his mother indicated that her son “knew
about it.” In response to the Court's Proper Form
Order of November 7, 2016 (DE# 3), Petitioner submitted his
own signature page. (DE# 1-4, attachment added on December 5,
2016). The record reflects that Petitioner mailed
his signature page on November 30, 2016 (DE# 1-5, mailing
envelope), and that the Clerk of Court received and docketed
the signature page on December 5, 2016.
December 6, 2016, the Magistrate Judge entered a Show Cause
Order (DE# 9), giving Petitioner twenty-one (21) days (plus
three days for mail time) to file a factual explanation as to
why his petition should not be dismissed as time-barred,
based on the application of the one year limitation period
established by 28 U.S.C. § 2244(d). Petitioner did not
timely respond to the Court's Show Cause Order.
Petitioner's mother called the Clerk of Court on January
6, 2017 to advise that she had spoken with Petitioner that
day, that the prison had been on lockdown, and that
Petitioner had told her he would mail his response to the
Show Cause Order that day. She called again on January 17,
2017, indicating that she would notify her son to mail
another response “since the other one may have gotten
lost in the mail.” To date, no response has been
received by the Clerk of Court. More than thirty (30) days
have passed since a response to the Show Cause Order was due.
Although a response to the Show Cause Order was due in
December 2016, it is now February 2017 and no response has
been received by the Clerk of Court. Plaintiff has been given
ample time to comply with the Show Cause Order.
Whether the Petition was Timely Filed
of the petition reflects that Petitioner has not timely filed
the § 2254 petition within the applicable one year
period of limitations. The standard pre-printed habeas form
requests information concerning the timeliness of filing of
the § 2254 petition, as follows:
TIMELINESS OF PETITION: If your judgment of conviction became
final over one year ago, you must explain why the one-year
statute of limitations as contained in 28 U.S.C. §
2244(d) does not bar your petition.
question ends with a footnote that contains the relevant part
of 28 U.S.C. § 2244(d), as follows:
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) as contained in 28 U.S.C. §
2244(d) provides in part that:
(1) A one-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The