Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bailey v. Warden, Broad River Correctional Institution

United States District Court, D. South Carolina, Charleston Division

February 3, 2017

Michael Adam Bailey, #323554, Petitioner,
v.
Warden, Broad River Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE

         Petitioner 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:

         I. Background

         In 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.”[1] 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 On direct appeal, the South Carolina Court of Appeals affirmed the conviction by unpublished opinion on June 10, 2010.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, ¶ 9h).

         On June 10, 2011, Petitioner (through counsel) filed an application for state post-conviction relief (“PCR”). After a hearing, [2] the state court denied relief on January 30, 2014.[3] 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.[4] 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).

         On 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).[5] 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.[6]

         On 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.

         II. Discussion

         A. Whether the Petition was Timely Filed

         Review 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.

         The 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.