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Bellamy v. Warden, Lieber Correctional Institution

United States District Court, D. South Carolina

February 3, 2017

Travis Bellamy, #323612, Petitioner,
v.
Warden, Lieber Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III, United States Magistrate Judge

         This is an action seeking habeas corpus relief under 28 U.S.C. § 2254. Petitioner is a state prisoner. Petitioner filed a “Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody” Form AO241 on December 2, 2016. (ECF No. 1). Plaintiff has not placed this case into proper from, has not filed a Motion for In Forma Pauperis or paid the filing fee, and has not answered the questions listed in the Petition, despite court orders with specific instructions and forms. Nevertheless, the court addresses the untimeliness of Petitioner's first habeas petition.[1]

         Petitioner filed his § 2254 Petition, by delivering it to prison officials to be mailed, on November 28, 2016. (ECF 1-1); see Houston v. Lack, 487 U.S. 266, 271 (1988). On August 6, 2009, Petitioner was convicted after a jury trial for burglary(case number 2007-GS-2603930) and armed robbery with sentences of life imprisonment and thirty years to run concurrently. (ECF No. 1 at 47-48). Petitioner timely filed a direct appeal of his convictions to the South Carolina Court of Appeals and the remittitur was issued to the lower court on June 6, 2011. (ECF No. 1 at 37, 20). Under SCACR Rule 221, Petitioner had 15 days to petition for rehearing and did not. Therefore, Petitioner's conviction became final on June 21, 2011.

         Thereafter, on July 6, 2011, Petitioner filed his first post-conviction relief motion (PCR)(2011-CP-2605644) in the court of common pleas. (ECF No. 1 at 38-39, 21). On September 13, 2012, the lower court dismissed the PCR. Petitioner had thirty days to appeal the dismissal and appealed on September 24, 2012. The remittitur from the Court of Appeals, dismissing the PCR, was filed in the lower court on February 17, 2015.

         Petitioner filed a second PCR application(2015-CP-26-2344) on March 26, 2015, and it was dismissed on May 20, 2016. (ECF No. 1 at 36-42).

         Since the Petition in this case is untimely, in two orders (ECF Nos. 5 & 10) dated December 7, 2016, and January 4, 2017, the undersigned directed the Petitioner as follows:

Upon initial review of the Petition, it appears from the face of the Petition that this case may be untimely filed. This order is notice to Petitioner that the court is considering dismissal of his case based on the running of the one-year statute of limitations. Unless the petitioner provides facts casting doubt on the issue of untimeliness of his Petition and thereby prevent dismissal based on the limitations bar, this case may be subject to dismissal. Accordingly, Petitioner is granted twenty-one (21) days to file a factual explanation with this court to show cause why his Petition should not be dismissed based on the application of the one-year limitation period established by 28 U.S.C. § 2244(d), including but not limited to, factual dispute regarding the relevant dates of filings in state court mentioned and/or facts supporting the application of equitable tolling. See Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003).

(ECF No. 5).

         Additionally, the Order cited law in regard to the functioning of the habeas one-year statute of limitations:

Section 2244(d) provides that a petition for writ of habeas corpus must be filed within one year of the date on which the conviction being challenged becomes final. The one-year period does not run (“is tolled”) during the time period that a direct appeal and a post-conviction relief (“PCR”) application are pending. Petitioner's first PCR application was denied and the remittitur from the court of appeals filed on February 17, 2015.
Further, § 2244(d)'s one-year statute of limitations is subject to equitable tolling which could extend the final date for filing. Lindh v. Murphy, 521 U.S. 320 (1997); Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000). A petitioner may be entitled to equitable tolling of the statute of limitations if he can demonstrate “(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time.” Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003). In 2010, the United States Supreme Court considered the issue and held that the statute would be equitably tolled “only if [the petitioner] shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (quoting Pace, 544 U.S. at 418)).

(ECF No. 5).

         DISCUSSION

         The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the Petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently ...


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