United States District Court, D. South Carolina, Orangeburg Division
Damien O. Johnson, Petitioner,
Warden, Livesay Correction Institution, Respondent.
OPINION AND ORDER
Honorable Margaret B. Seymour Senior District Court Judge.
O. Johnson (“Petitioner”) is an inmate who is
currently housed at the Tyger River Correctional Institution
in Enoree, South Carolina. On May 19, 2015, Petitioner filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, challenging his drug-trafficking and
resisting-arrest convictions entered on a guilty plea in
Horry County, South Carolina, on March 5, 2012. In accordance
with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C.,
this matter was referred to United States Magistrate Judge
Kaymani D. West for pretrial handling.
August 3, 2016, Petitioner filed a motion for sanctions (ECF
No. 62) and a motion for entry of default (ECF No. 63). On
August 8, 2016, Petitioner moved for judgment on the
pleadings. ECF No. 67. On August 22, 2016, the Magistrate
Judge issued a Report and Recommendation recommending
Petitioner's motion for sanctions, motion for entry of
default, and motion for judgment on the pleadings be denied.
ECF No. 71. Petitioner filed objections to the Report and
Recommendation on September 8, 2016. ECF No. 80. On September
2, 2016, Respondent filed a motion for summary judgment. ECF
No. 74. On September 6, 2016, the court issued an order,
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), advising Petitioner of the summary judgment
procedure and the possible consequences if he failed to
respond adequately. ECF No. 76. Petitioner filed a response
in opposition to the government's motion on October 12,
2016. ECF No. 87.
September 6, 2016, Petitioner moved to amend or correct his
habeas petition. ECF No. 78. On October 12, 2016, Petitioner
filed a motion to strike and a motion for discovery. ECF Nos.
88, 89. On November 4, 2016, the Magistrate Judge issued a
Report and Recommendation recommending that Respondent's
motion for summary judgment be granted and the petition be
denied. ECF No. 98. The Magistrate Judge recommended denying
the remaining motions. Id. On November 7, 2016,
Petitioner again moved for judgment on the pleadings. ECF No.
100. On November 28, 2016, Petitioner filed objections to the
Report and Recommendation. ECF No. 105. For the reasons set
forth below, Respondent's motion for summary judgment is
granted, Petitioner's petition for habeas corpus is
denied. Petitioner's motion for sanctions is denied. All
remaining motions are denied as moot.
2010, Petitioner was indicted at the August term of the Horry
County Grand Jury for trafficking in cocaine
(2010-GS-26-03559) and resisting arrest (2010-GS-26-04219).
ECF No. 73-1. Barbara Wilson Pratt, Esq., represented
Petitioner, and Assistant Solicitor Stephen Grooms
represented the State. ECF No. 73-2; 73-8 at 5-7; ECF No. 82.
On March 5, 2012, Petitioner entered into a negotiated guilty
plea before the Honorable Steven H. John. ECF No. 82. Judge
John sentenced Petitioner to seven years imprisonment for the
trafficking conviction and one-year imprisonment for the
resisting arrest charge, to run concurrently. Id. at
March 14, 2012, Petitioner timely filed a Notice of Appeal.
ECF No. 73-2. In the notice of appeal, Petitioner's
attorney stated “Trial Counsel believes that no issues
of law or fact were raised before the Judge at that time that
could be a basis for an [a]ppeal in this matter. The
[Petitioner], through his mother, has requested that this
appeal be filed despite my opinion concerning appealable
issues.” ECF No. 73-2 at 2. On August 9, 2012,
Petitioner's attorney forwarded Petitioner a letter from
the South Carolina Court of Appeals to submit “a
statement in writing of any arguable basis for appeal”
to the Court of Appeals. ECF Nos. 95-1, 95-2.
Petitioner's attorney also “enclose[ed her]
explanation for appealing as the Court [of Appeals
requested.” ECF No. 95-2. Petitioner submitted his
statement to the South Carolina Court of Appeals, where it
was received on August 30, 2015. ECF No. 95-3. On September
25, 2012, the South Carolina Court of Appeals dismissed
Petitioner's direct appeal because Petitioner
“failed to provide a sufficient explanation pursuant to
Rule 203(d)(1)(B)(iv) of the South Carolina Appellate Court
Rules (SCACR).” ECF No. 73-3. On October 15, 2012, the
Court of Appeals remitted the matter to the lower court. ECF
No. 73-4. As Petitioner did not file a Petition for
Rehearing, his conviction became final on October 30, 2012,
after the fifteen day time period elapsed. See S.C.
Rule of App. Proc. 221(a). The Office of the Clerk for Horry
County, South Carolina, received the remittitur on October
29, 2012. ECF No. 16 at 1.
filed a Post-Conviction Relief (“PCR”)
Application in state court on August 8, 2014. ECF No. 1 at 3.
Petitioner submitted the within § 2254 while the stated
PCR action was still pending. Petitioner explained that he
wanted to proceed in federal court because he thought he was
experiencing “inordinate delay” in the processing
of his PCR application. ECF No. 1 at 6. Petitioner's PCR
action was final on February 19, 2016, after denial of appeal
by the South Carolina Supreme Court. Accordingly, Petitioner
has exhausted his state remedies. Petitioner filed an amended
petition for writ of habeas corpus on June 1, 2016, raising
several new claims.
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
(1976). The court is charged with making a de novo
determination on any portions of the Report and
Recommendation to which a specific objection is made.
Id. In the absence of objections to the Magistrate
Judge's Report and Recommendation, the court is not
required to give any explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198,
199 (4th Cir. 1983). The court must “only satisfy
itself that there is no clear error on the face of the record
in order to accept the recommendation.” Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005). The court may accept, reject, or modify, in
whole or in part, the recommendation made by the Magistrate
Judge. 28 U.S.C. § 636(b)(1).
Motion for Summary Judgment
moved for summary judgment, arguing Petitioner's claim
falls outside of the statute of limitations. ECF No. 73 at
17-21. The Magistrate Judge found that the statute of
limitations set by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) had expired and
equitable tolling does not apply to Petitioner's claim.
ECF No. 98 at 10. Petitioner did not object to the Magistrate
Judge's finding that his claim was filed outside of the
statute of limitations set by the AEDPA. The court adopts the
Magistrate Judge's finding that Petitioner filed his
federal habeas petition outside of the statute of
objected to the Magistrate Judge's determination that his
petition was not subject to equitable tolling. ECF No. 105.
The Supreme Court held that equitable tolling only applies if
the petitioner shows “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Holland v.
Florida, 560 U.S. 631, 649 (2010). The Fourth Circuit
permits equitable tolling of AEDPA's statute of
limitations in very limited circumstances. Harris v.
Hutchinson, 209 F.3d 325 (4th Cir. 2000). A habeas
petitioner “is only entitled to equitable tolling if he
presents (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) (en banc). Petitioner bears the
burden of demonstrating he is entitled to equitable tolling.
Page v. DiGugeliemlmo, 544 U.S. 408, 418 (2005).
argues for equitable tolling on the basis that he had no
knowledge that his direct appeal had been dismissed due to
attorney error. ECF No. 87 at 6. However, Petitioner has not
demonstrated that he exercised reasonable diligence in
pursuing his rights. Petitioner was aware that his attorney
was not pursuing the claims on appeal. See ECF No.
95-2. There is no evidence that Petitioner attempted to
discover the status of his appeal until July 14, 2014, after
the time to file his habeas petition had elapsed.
See ECF No. 42-4 at 1. Petitioner has not
demonstrated an extraordinary ...