United States District Court, D. South Carolina, Charleston Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
matter is before the court on Petitioner's pro
se petition filed in this court pursuant to 28 U.S.C.
§2254 on January 25, 2017. ECF No. 1. Petitioner
challenges his conviction for assault with intent to commit
criminal sexual conduct, second degree in the Court of
General Sessions in Dorchester County, alleging ineffective
assistance of counsel and failure of the trial judge to
notify the jury of a court's exhibit Petitioner says
would aid his claim of innocence.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(c), DSC, this matter was referred to United
States Magistrate Judge Mary Gordon Baker for pre-trial
proceedings and a Report and Recommendation. On March 30,
2017, the Magistrate Judge issued an Order to Show Cause,
noting the petition appeared to be untimely based on the
applicable statute of limitations, and providing petitioner
twenty-one days to file a factual explanation showing cause
why his petition should not be dismissed as untimely. ECF No.
10. Petitioner filed a response to the show cause order,
appearing to state excusable neglect as a reason for tolling
the statute of limitations. ECF No. 12. On April 28, 2017,
the Magistrate Judge issued a Report recommending this matter
be dismissed as untimely. ECF No. 15. The Magistrate Judge
advised Petitioner of the procedures and requirements for
filing objections to the Report and the serious consequences
if he failed to do so. Petitioner timely filed objections.
ECF No. 17.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261 (1976). The
court is charged with making a de novo determination
of those portions of the Report to which specific objection
is made, and the court may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge,
or recommit the matter to the Magistrate Judge with
instructions. 28 U.S.C. § 636(b)(1). The court reviews
only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (stating that “in the
absence of a timely filed objection, 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.'”) (quoting Fed.R.Civ.P. 72
advisory committee's note).
conducting a de novo review of the record as to the
objections made, and after considering the applicable law,
the Report and Recommendation of the Magistrate Judge, and
Petitioner's objections, the court agrees with the
conclusions of the Magistrate Judge. Accordingly, the court
adopts and incorporates the Report and Recommendation by
reference in this Order.
objections do not raise any factors that would lead the court
to apply equitable tolling in this case. The court agrees
with the Magistrate Judge regarding Petitioner's claim of
excusable neglect, which is not a ground for the application
of equitable tolling. See Rouse v. Lee, 339 F.3d
238, 246 (4th Cir. 2003). The court further agrees Petitioner
has not met the Schlup standard of a convincing
showing of actual innocence needed to overcome the statute of
limitations. See Schlup v. Delo, 513 U.S. 298, 316
AEDPA statute of limitations is an affirmative defense, and
it is improper to dismiss this petition without allowing
Petitioner the opportunity to provide evidence regarding
equitable tolling or other reasons his petition is not
time-barred. United States v. McRae, 793 F.3d 392,
401 (4th Cir. 2015). However, Petitioner has been given two
opportunities to present such evidence, once in response to
the Magistrate Judge's Show Cause Order and again in his
objections to the Report, and has failed to do so each time.
As the court has the power to raise affirmative defenses
sua sponte, and has warned Petitioner his case was
subject to dismissal pursuant to the statute of limitations,
a dismissal based on untimeliness does not offend Fourth
Circuit precedent. Hill v. Braxton, 277 F.3d 701,
707 (4th Cir. 2002) (noting district court may raise
affirmative defense sua sponte but must warn
petitioner case is subject to dismissal before doing so);
see also United States v. Blackstock, 513 F.3d 128
(4th Cir. 2008) (Petitioner must have “opportunity to
come forward with evidence that might justify the application
of equitable tolling or otherwise establish that his claims
are not time-barred” before his petition is dismissed
based on statute of limitations).
the petition is dismissed with prejudice as untimely filed.
governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if
the applicant has made a substantial showing of the denial of
a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate
which specific issue or issues satisfy the showing required
by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard
by demonstrating that reasonable jurists would find this
court's assessment of his constitutional claims is
debatable or wrong and that any dispositive procedural ruling
by the district court is likewise debatable. See
Miller-El v. Cockrell,537 U.S. 322, 336 (2003);
Slack v. McDaniel,529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In
this case, the legal standard for the ...