United States District Court, D. South Carolina, Greenville Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge.
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending the petition for habeas
relief under 28 U.S.C, § 2254 be dismissed as untimely.
For the reasons set forth below, the Court adopts the Report
and Recommendation, grants Respondent's motion for
summary judgment, and dismisses the petition.
March 15, 2006, petitioner was convicted of armed robbery,
kidnapping, and possession of a firearm during a violent
crime and was sentenced to thirty years' imprisonment.
Petitioner's direct appeal was dismissed on November 10,
2008. On May 7, 2009, he first applied for post-conviction
relief ("PCR"), which was denied on October 27,
2010. Petitioner alleges he did not appeal the denial of his
first PCR application because he was unaware it had been
dismissed and his attorney failed to timely appeal.
Petitioner became aware of the dismissal no later than
December 14, 2012, because he filed a letter regarding the
issue in the court of common pleas. On September 13, 2013,
petitioner again applied for post-conviction relief, alleging
his counsel for his first PCR application failed to seek
timely appellate review and seeking a review under Austin
v. South Carolina, 409 S.E.2d 395 (1991). That second
application was denied; the remittitur was filed in the lower
court on March 14, 2016. Petitioner filed the present
petition on May 2, 2016.
September 9, 2016, the Magistrate Judge recommended summary
dismissal of the petition as untimely (Dkt. No. 18), to which
Petitioner objected on September 27, 2016 (Dkt. No. 20).
Petitioner's objections asserted that the limitations
period should be equitably tolled because he had been
hospitalized. The Court recommitted the matter to the
Magistrate Judge to consider Petitioner's objections.
(Dkt. No. 22.) On March 1, 2017, the Magistrate Judge
recommended summary judgment for Respondent. (Dkt. No. 42.)
Petitioner has filed no objections.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). This Court is charged with making a de novo
determination of those portions of the Report and
Recommendation to which specific objection is made.
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). This
Court may also "receive further evidence or recommit the
matter to the magistrate judge with instructions."
Id. Where the plaintiff fails to file any specific
objections, "a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation, " see Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(internal quotation omitted), and this Court is not required
to give any explanation for adopting the recommendation of
the Magistrate Judge, Camby v. Davis, 718 F.2d 198
(4th Cir. 1983).
petition for habeas corpus must be filed within one year of
the latest of several triggering dates given by statute, 28
U.S.C. § 2244(d)(1). The limitations period is tolled
during the pendency of PCR proceedings. 28 U.S.C. §
2244(d)(2). The limitations period is also equitably tolled
in extraordinary circumstances. Holland v. Florida,
130 S.Ct. 2549, 2560 (2010). A petitioner "is entitled
to equitable tolling only if he shows (1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing." Id. at 2562 (internal quotation
case, the record shows three periods of untolled time: (1)
163 days from November 25, 2008 (date Petitioner's
conviction became final) to May 7, 2009 (filing of first PCR
application; (2) 1022 days from November 26, 2010 (date
appeal period lapsed for denial of first PCR application) to
September 13, 2013 (filing date of second PCR application);
and (3) 49 days from March 14, 2016 (date the South Carolina
Supreme Court's remittitur was filed in lower court) to
May 2, 2016 (filing date for present petition). (See
Dkt. No. 18 at 4-5 (calculating accrual dates and tolling
periods regarding the present petition).) The petition
therefore is untimely by 869 days.
argues that time should be equitably tolled for two reasons:
(1) his attorney allegedly failed to appeal the denial of the
PCR application or to notify Petitioner of the denial, which
Petitioner allegedly learned of on December 14, 2012, and (2)
he was hospitalized for most of the period from December 2012
to September 2013. (See Dkt. No. 20.) But, even if
Petitioner's assertions are assumed true, he fails to
show extraordinary circumstances justifying equitable tolling
for a period exceeding two years. Attorney failures generally
are not extraordinary circumstances justifying equitable
tolling. See, e.g., Harris v. Hutchinson, 209 F.3d
325, 330-31 (4th Cir. 2000) (holding mistake by counsel
regarding calculation of the limitations period does not
justify equitable tolling); McHoney v. South
Carolina, 518 F.Supp.2d 700, 706 (D.S.C. 2007) (holding
counsel's mistaken failure to file a timely notice of
appeal does not justify equitable tolling). Petitioner cannot
toll 749 days from the limitations period (November 26, 2010
to December 14, 2012) simply by claiming he was not speaking
with his attorney. Thus, even if the Court were to toll the
limitations period for the claimed hospitalization period of
December 2012 to September 2013, the present petition would
be untimely by well over a year. IV. Conclusion For
the foregoing reasons, the Court ADOPTS the Report and
Recommendation (Dkt. No. 42) as the Order of the Court,
GRANTS Respondent's motion for summary judgment (Dkt. No.
36), and DISMISSES the petition (Dkt. No. 1).
governing law provides that:
(c)(2) A certificate of appealability may issue ... only if
the applicant has made a substantial showing of the denial ...