United States District Court, D. South Carolina, Orangeburg Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge.
matter is before the court with the Report and Recommendation
of United States Magistrate Judge Kaymani D. West, made in
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 of the District of South Carolina. Joseph Paugh
(“Paugh”) is a pro se state prisoner seeking
habeas corpus relief pursuant to 28 U.S.C. § 2254. In
her Report and Recommendation, Magistrate Judge West
recommends granting Respondent's motion for summary
judgment and denying Paugh's petition because the
petition is untimely and he has failed to demonstrate grounds
for equitable tolling.
filed objections to the Report and Recommendation. Objections
to the Report and Recommendation must be specific. Failure to
file specific objections constitutes a waiver of a
party's right to further judicial review, including
appellate review, if the recommendation is accepted by the
district judge. See United States v. Schronce, 727
F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of
specific objections to the Report and Recommendation
of the magistrate judge, this court is not required to give
any explanation for adopting the recommendation. See
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
review, the court finds that many of Paugh's objections
are non-specific, unrelated to the dispositive portions of
the magistrate judge's Report and Recommendation, or
merely restate his claims. However, the court was able to
glean one specific objection. Paugh objects that the
magistrate judge erred in finding that the one-year statute
of limitations period tolled when Paugh filed his PCR
application on November 13, 2013. (R&R 13, ECF No. 37.)
Paugh contends that he filed his PCR application on April 8,
2013, but the clerk did not submit the application until
November 13, 2013, because the application to proceed without
payment of costs and affidavit in support thereof were not
attached. (Objs. 2, ECF No. 39.)
objection is without merit. Pursuant to 28 U.S.C. §
2244(d)(2), to toll the one-year statute of limitations for
filing of federal habeas claims, Paugh's PCR application
must have been “properly filed.” Pettinato v.
Eagleton, 466 F.Supp.2d 641, 647 (D.S.C. 2006).
[A]n application is ‘properly filed' when its
delivery and acceptance are in compliance with the applicable
laws and rules governing filings. These usually prescribe,
for example, the form of the document, the time limits upon
its delivery, the court and office in which it must be
lodged, and the requisite filing fee.
Artuz v. Bennett, 531 U.S. 4, 8 (2000); see also
McSheffrey v. Angelone, No. 98-6519, 1999 WL 89403, at
*2 (4th Cir. Feb. 23, 1999) (unpublished) (“A state
application is properly filed if it complies with the state
procedural requirements for successive collateral attacks on
a conviction, such as timeliness and proper place of
PCR application was not filed with the requisite filing fee
or application to proceed without payment of costs and
affidavit in support thereof. (Objs. 2, ECF No. 39.) Thus,
Paugh's PCR application was not “properly
filed” on April 18, 2013, to toll the one-year statute
of limitations for the filing of his habeas petition claim.
Paugh's PCR application was properly filed on November
13, 2013. Based on the foregoing, Paugh's § 2254
petition is untimely. Therefore, after a thorough review of
the magistrate judge's Report and the record in this
case, the court adopts Magistrate Judge West's Report and
Recommendation and incorporates it herein.
that Respondent's motion for summary judgment, docket
number 25, is granted and the petition, docket number 1, is
denied. It is further
that a certificate of appealability is denied because Paugh
has failed to make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. §
IS SO ORDERED.
OF RIGHT TO APPEAL
Petitioner is hereby notified that he has the right to appeal
this order within thirty (30) days from the date hereof,
pursuant to Rules 3 and ...