United States District Court, D. South Carolina, Greenville Division
L. WOOTEN CHIEF UNITED STATES DISTRICT JUDGE
Joseph Gabriel Cobb, proceeding pro se and in forma pauperis,
filed this action on October 3, 2017, seeking habeas corpus
relief pursuant to 28 U.S.C. § 2254. ECF No. 1. On
January 26, 2018, Respondent filed a Return and Memorandum
and a Motion for Summary Judgment. ECF Nos. 22, 23.
Subsequently, Petitioner filed responses in opposition to the
summary judgment motion. ECF Nos. 27, 29. This matter now
comes before this Court for review of the Report and
Recommendation (the Report) filed on March 12, 2018, by
United States Magistrate Judge Kevin F. McDonald, to whom
this case was previously assigned pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c),
(D.S.C.). ECF No. 30. In the Report, the Magistrate Judge
recommends granting Respondent's Motion for Summary
Judgment and dismissing the petition. Id. On May 3,
2018, Petitioner filed a “Motion for Leave to File an
Amended Petition, ” moving for amendment of his
petition and objecting to the Magistrate Judge's
conclusion that he is not entitled to equitable tolling. ECF
No. 32. This matter is now ripe for disposition.
conducting its review, the Court applies the following
The magistrate judge makes only a recommendation to the
Court, to which any party may file written objections.... The
Court is not bound by the recommendation of the magistrate
judge but, instead, retains responsibility for the final
determination. The Court is required to make a de novo
determination of those portions of the report or specified
findings or recommendation as to which an objection is made.
However, the Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of
the magistrate judge as to those portions of the report and
recommendation to which no objections are addressed. While
the level of scrutiny entailed by the Court's review of
the Report thus depends on whether or not objections have
been filed, in either case the Court is free, after review,
to accept, reject, or modify any of the magistrate
judge's findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia,
791 F.Supp. 137, 138 (D.S.C. 1992) (citations omitted).
light of the standard set forth in Wallace, the
Court has reviewed, de novo, the relevant case law and
filings. The Report sets forth the relevant dates related to
the one-year statute of limitations and the untimeliness of
the Petitioner's filing. ECF No. 30 at
9-11. Further, in the May 3, 2018 filing,
Petitioner admits that the petition was filed untimely. ECF
No. 32 at 1 (stating that the petition was filed “(109)
days past tolled time….”). Based on the outline
in the Report, this Court concludes that the Magistrate Judge
was correct in determining that the habeas petition was filed
109 days after the time limitation had run.
Report, the Magistrate Judge addresses the equitable tolling
question, concluding that the record reflects the Petitioner
has not stated a reason that equitable tolling applies in
this case. See Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005); Rouse v. Lee, 339 F.3d 238, 246 (4th
Cir. 2003). Petitioner states in his May 3, 2018 filing that
he is entitled to equitable tolling because he suffers from
mental deficiencies that left him unable to understand the
litigation process; he was in lock up; and he was separated
from the prison assistant who assisted him with appellate
procedures. ECF No. 32. The Court has carefully reviewed the
Report, filings, and case law in connection with this matter,
and concludes that, in his May 3, 2018 filing, Petitioner has
not stated a basis for equitable tolling of the instant
petition or a basis for not accepting the detailed factual
and legal analysis by the Magistrate Judge. See Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (finding
that petitioner was not entitled to equitable tolling);
Id. (“It is well established that ignorance of
the law, even for an incarcerated pro se petitioner,
generally does not excuse prompt filing.”) (citation
and quotation omitted); Id. (“The fact that an
inmate law clerk was assisting in drafting the state petition
does not relieve [petitioner] from the personal
responsibility of complying with the law.”);
Id. (“[E]ven assuming that such a short
closing of a prison law library could be considered
‘extraordinary,' [petitioner] has not shown how
this lack of access caused his delay in filing.”). In
addition, the Court has reviewed Petitioner's May 3, 2018
filing and, to the extent that Petitioner requests leave to
amend his petition, the Court finds that amendment of the
petition is futile as it would not cure the untimeliness of
the current petition.
after careful consideration, the Court ACCEPTS the Report,
ECF No. 30, and overrules Petitioner's objections, ECF
No. 32. Respondent's motion for summary judgment, ECF No.
23, is hereby GRANTED, and the petition, ECF No. 1, is
DISMISSED. Additionally, Petitioner's motion to amend the
petition, ECF No. 32, is DENIED as amendment would be futile.
Court has reviewed this petition in accordance with Rule 11
of the Rules Governing Section 254 Proceedings. The Court
concludes that it is not appropriate to issue a certificate
of appealability as to the issues raised herein. Petitioner
is advised that he may seek a certificate from the Fourth
Circuit Court of Appeals under Rule 22 of the Federal Rules
of Appellate Procedure.
 These dates will not be repeated here,
as they are clearly laid out in the ...