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 that Respondent's
motion for summary judgment be granted and Petitioner's
petition for habeas relief be dismissed. For the reasons set
forth below, the Court adopts the Report and Recommendation,
grants Respondent's motion for summary judgment, and
dismisses the petition for habeas relief.
was indicted in June 2008 for grand larceny, ten counts of
assault and battery with intent to kill and assault and
battery of a high and aggravated nature, and weapons charges.
On March 31, 2009, a competency hearing was held, and
Petitioner was found competent to stand trial. Petitioner
then pleaded guilty. He was sentenced to 38 years
appealed his convictions, arguing the trial court should have
ordered a second psychiatric evaluation. The South Carolina
Court of Appeals affirmed the convictions on April 12, 2011.
Petitioner did not seek review in the South Carolina Supreme
Court. Instead, on May 2, 2011, Petitioner filed an
application for post-conviction relief ("PCR"),
arguing trial counsel was ineffective for failing to request
an M'Naughten evaluation and failing to
investigate the possibility of an insanity defense. After a
hearing, the PCR application was denied. Petitioner filed a
petition for a writ of certiorari with the South Carolina
Supreme Court, which was denied. The remittitur was filed in
the Colleton County Clerk's office on December 21, 2015.
March 17, 2017, Petitioner, represented by counsel, filed the
present petition for habeas relief under 28 U.S.C. §
2254. Petitioner argues plea counsel was ineffective for
failing to request an M'Naughten evaluation and
for failing adequately to advise Petitioner of the
consequences of pleading guilty. Petitioner also argues as a
third ground for relief that PCR counsel was ineffective for
failing to call an expert witness. On December 1, 2017, the
Magistrate Judge recommended the petition be dismissed as
time-barred under 28 U.S.C. § 2244(d). Petitioner filed
no objections to the Report and Recommendation.
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. When a proper objection is made to a particular
issue, "a district court is required to consider all
arguments directed to that issue, regardless of whether they
were raised before the magistrate." United States v.
George, 971 F.2d 1113, 1118 (4th Cir. 1992). However,
"[t]he district court's decision whether to consider
additional evidence is committed to its discretion, and any
refusal will be reviewed for abuse." Doe v.
Chao, 306 F.3d 170, 183 & n. 9 (4th Cir.2002).
"[A]ttempts to introduce new evidence after the
magistrate judge has acted are disfavored" though the
district court may allow it "when a party offers
sufficient reasons for so doing." Caldwell v,
Jackson, 831 F.Supp.2d 911, 914 (M.D. N.C. 2010)
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 most common triggering date is
the denial of Petitioner's direct appeal to the state
court of last resort. 28 U.S.C. § 2244(d)(1)(A). The
one-year limitations period accrues on the day following the
date of state court of last resort's decision, not the
date of issuance of its mandate or remittitur. Gonzalez
v. Thaler, 132 S.Ct. 641, 654 (2012). Here, there was no
direct appeal to the South Carolina State Supreme Court. In
such cases, the triggering date is the expiration of the time
for seeking such review. 28 U.S.C. § 2244(d)(1)(A).
one-year limitations period is tolled during the pendency of
PCR proceedings. 28 U.S.C. § 2244(d)(2). The PCR tolling
period begins when an initial PCR application is properly
filed in state court. Artuz v. Bennett, 531 U.S. 4,
8 (2000). It includes the time during which the denial of the
PCR application is on appeal within state courts, including
the time between the PCR court's denial of the
application and the filing of a timely notice of appeal.
Evans v. Chavis, 546 U.S. 189, 191, 198, 201 (2006).
But it does not include certiorari review by the United
States Supreme Court. Lawrence v. Florida, 549 U.S.
327, 329 (2007). The tolling period ends when the final state
appellate decision affirming denial of the application is
filed in the state circuit court. Beatty v. Rawski,
97 F.Supp.3d 768, 780 (D.S.C. 2015).
Magistrate Judge correctly calculates that the statute of
limitations ran for four days following Petitioner's
direct appeal of his convictions, leaving 361 untolled days
following the filing of the remittitur from the South
Carolina Supreme Court's denial of certiorari regarding
Petitioner's PCR application in the Colleton County
Clerk's office on December 21, 2015. Accordingly, the
statute of limitations expired on December 17, 2016. The
present petition, filed on March 17, 2017, is 91 days late.
Petitioner concedes that the petition is untimely, but argues
the limitations period should be equitably tolled.
Supreme Court has held that the statute of limitations for
habeas petitions "is subject to equitable tolling in
appropriate cases." Holland v. Florida, 130
S.Ct. 2549, 2560 (2010). The limitations period should 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." Id. at 2562.
Petitioner argues he is entitled to equitable tolling because
his purported mental impairment interfered with his ability
to file a timely petition. "In order to establish
equitable tolling due to mental impairment, a petitioner must
make a threshold showing of incompetence and also demonstrate
that such incompetence affected his ability to file a timely
habeas petition." Griffin v. Ransom, C.A. No.
5:16-HC-2149-FL, 2017 WL 1628883, at *4 (E.D. N.C. Apr. 28,
2017) (citation omitted). The Magistrate Judge determined
that Petitioner "has failed to make the required showing
that he is entitled to equitable tolling" because he
"has made no showing of mental incompetence during the
pertinent time period nor has he shown how his alleged mental
issues prevented him from timely pursuing his federal habeas
petition." (Dkt. No. 14 at 10-11.) The Court agrees.
Moreover, Petitioner, represented by counsel, has not
objected to that determination.
petition for habeas relief is untimely by 91 days and
Petitioner has not made the required showing for equitable
tolling of the limitations period. The Court therefore adopts
the Report and Recommendation, grants Respondent's motion