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Holloway v. Stevenson

United States District Court, D. South Carolina

January 19, 2018

Asherdon Fari Holloway, Petitioner,
v.
Warden Stevenson, Respondent.

          ORDER AND OPINION

         This matter is before the court on Petitioner Asherdon Holloway's (“Petitioner”) Motion for Reconsideration. (ECF No. 49.) Petitioner moves the court to reconsider its Text Order denying Petitioner's Objection (ECF No. 47), finding that his Objection was untimely. For the reasons stated below, the court GRANTS Petitioner's Motion for Reconsideration (ECF No. 49).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The court incorporates all facts stated in the Magistrate Judge's Report and Recommendation (“Report”), and only states facts and procedures relevant to the matter before the court. Magistrate Judge Jacquelyn D. Austin filed the Report on July 11, 2017 (ECF No. 40), and the court accepted it on July 27, 2017 (ECF No. 42.) On August 3, 2017, Petitioner filed his Objection (ECF No. 45), and on August 24, 2017, the court found that it was untimely (ECF No. 47). On September 5, 2017, Petitioner filed a Motion for Reconsideration, inquiring as to the reason his case was closed; and stating that if it was closed because of his “tardy” Objection, he could provide evidence that he received his legal mail a week after the prison received it. (ECF No. 49.) Respondent Warden Stevenson (“Respondent”) responded to Petitioner's Motion (ECF No. 50), and Petitioner replied (ECF No. 52).

         II. LEGAL STANDARD

         "[B]efore a party may seek relief under Rule 60(b), a party first must show timeliness, a meritorious defense, [1] a lack of unfair prejudice to [any] opposing party, and exceptional circumstances.[2] After a party has crossed this initial threshold, he then must satisfy one of the six specific sections of Rule 60(b)." Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993) (citing Werner v. Carbo, 731 F.2d 204, 207 (4th Cir. 1984)).

         A court may relieve a party from a final judgment under Fed.R.Civ.P. 60(b) for the following reasons: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.” A motion under this rule must be made within a reasonable time, and relief under reasons (1), (2), and (3) is not available after one year from the entry of the judgment. Fed.R.Civ.P. 60(c)(1).

         As Petitioner is a pro se litigant, the court is required to liberally construe his arguments. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se plaintiff's “inartful pleadings” may be sufficient enough to provide the opportunity to offer supporting evidence.)

         III. ANALYSIS

         Liberally construing Petitioner's Motion, the court finds that he brings his claim pursuant to the “excusable neglect” prong of Fed.R.Civ.P. 60(b)(1) as noted in his Reply. (ECF No. 52.) Petitioner meets the threshold requirements, as to timeliness, a meritorious defense, and lack of unfair prejudice; to move the court for reconsideration pursuant to Fed.R.Civ.P. 60. “Excusable neglect has been construed to mean that a court ‘will grant relief only where the actions leading to the default were not willful, careless, or negligent.'” Johnson v. Gudmundsson, 35 F.3d 1104, 1117 (7th Cir. 1994) (internal quotation marks omitted) (citing C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1209 (7th Cir. 1984)).[3] Petitioner contends that he filed his Objection to the Report on July 26, 2017 which would make his Objection timely. (ECF No. 52.) However, as noted by the court's Text Order on August 24, 2017, objections to the Report were due by July 25, 2017, and Petitioner's Objection was postmarked July 31, 2017.[4] (ECF No. 47.) Pursuant to Houston v. Lack, 487 U.S. 266, 276 (1988), a prisoner's documents are filed when they are received by the prison's mailroom. Petitioner may have dated his Objection July 26, 2017 (ECF No. 45 at 5), but it was postmarked by the prison's mailroom on July 31, 2017. (ECF No. 45-1 at 1.) Therefore, Petitioner's Objection was untimely.

         Petitioner provides the prison's legal mail delivery log, showing that the prison received the Report on July 14, 2017, and that it was delivered to him on July 19, 2017. (See ECF No. 52-1.) He asserts that this delay in the Report's delivery to him, which was not his fault, supports a finding of excusable neglect. The court agrees with Petitioner's assertion. Petitioner's late receipt of the Report, corroborated by the legal mail delivery log, did not give him adequate time to object; thus Petitioner has provided adequate evidence of excusable neglect for his Objection's untimely filing. The court now reconsiders Petitioner's Objection to the Report.

         The court is charged with making a de novo determination of those portions of the Report to which specific objections are made. Fed.R.Civ.P. 72(b)(2)-(3). “The district judge may accept, reject, or modify the recommended disposition; receive further evidence, or return the matter to the Magistrate Judge with instructions.” Id. at 72(b)(3). Petitioner has made two (2) specific objections to the Report: (1) the court misrepresented and manipulated the facts surrounding Petitioner's awareness of the possibility of being consecutively sentenced as it relates to his Plea Counsel's alleged ineffective assistance, and (2) “the court erred stating that the Post-Conviction Relief (“PCR”) court's finding that Petitioner never requested that [P]lea [C]ounsel file a motion for reconsideration was supported by [P]lea [C]ounsel's testimony.” (ECF No. 45 at 3-4.) Both of these objections reference evidentiary points used by the PCR court to find that Plea Counsel for Petitioner did not provide ineffective assistance of counsel.

         i. Plaintiff's First Objection

         “Under the [Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)] a federal court may not grant habeas relief unless the underlying state court decision was contrary to or an unreasonable application of federal law, as determined by the United States Supreme Court, or based on an unreasonable determination of the facts before the court.” (ECF No. 40 at 15 (citing 28 U.S.C. § 2254(d)(1)-(2).) When a federal court evaluates a habeas petition based on ineffective assistance of counsel, the court must determine whether the state court unreasonably applied federal law governing ineffective assistance of counsel which is the Supreme Court's holding in Strickland v. Washington, 466 U.S. 668, 687 (1984).[5] See Harrington v. Richter, 562 U.S. 86, 100-01 (2011). In the context of a guilty plea, the court's evaluation must also take into consideration Hill v. Lockhart, which pertains to the prejudicial prong of Strickland. 474 U.S. 52, 59 (1985).[6]

         The PCR court addressed Plea Counsel's performance under both Strickland and Hill, and found that counsel was not ineffective. (ECF No. 14-1 at 97-98.) The court only addresses whether the PCR court's application of federal law was reasonable pursuant to 28 U.S.C. § 2254(d)(1), not whether the PCR court applied the law correctly. See Richter, 562 U.S. at 101 (“[f]or purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.' A state court must be granted a ...


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