United States District Court, D. South Carolina, Beaufort Division
TIMOTHY M. CAIN UNITED STATES DISTRICT JUDGE.
Marlin Jamelle Hutley (“Petitioner”), a state
prisoner, filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. In accordance with 28 U.S.C. §
636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter was
referred to a magistrate judge for pretrial handling. Before
the court is the magistrate judge's Report and
Recommendation (“Report”), recommending that
Respondent's motion for summary judgment (ECF No. 9) be
granted. (ECF No. 17). The parties were advised of their
right to file objections to the Report. (ECF No. 17 at 8).
Petitioner timely filed objections on June 15, 2018. (ECF No.
22). On June 25, 2018, Respondent filed a response. (ECF No.
magistrate judge makes only a recommendation to the court.
The Report has no presumptive weight and the responsibility
to make a final determination in this matter remains with
this court. See Mathews v. Weber, 423 U.S. 261,
270-71 (1976). The court need not conduct a de novo review
when a party makes only “general and conclusory
objections that do not direct the court to a specific error
in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of a timely filed,
specific objection, the magistrate judge's conclusions
are reviewed only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
magistrate judge set forth the background and procedural
history in her Report. (ECF No. 17 at 1-4). Briefly, the case
stems from a traffic stop which resulted in Petitioner's
arrest. (ECF Nos. 1 at 5 and 10 at 13-14). Drugs were found
in Petitioner's car incident to his arrest and he was
indicted for trafficking cocaine and possession with intent
to distribute cocaine. (ECF No. 17 at 1).
October 10, 2011, Petitioner was convicted as charged after a
bench trial and sentenced to twenty-five years incarceration
for trafficking crack-cocaine and fifteen years incarceration
for possession with intent to distribute cocaine with the
sentences to run concurrent. (ECF No. 17 at 2).
filed a direct appeal and the South Carolina Court of Appeals
affirmed Petitioner's conviction and sentence on June 26,
2013. Id. The remittitur was issued by the Court of
Appeals on July 17, 2013, and entered by the trial court on
August 1, 2013. Id. Petitioner filed an application
for post-conviction relief (“PCR”) on December
30, 2013. Id. After a hearing, the PCR court denied
Petitioner relief in an order filed December 8, 2014.
Id. at 3. Petitioner filed a timely appeal of the
denial of his PCR application. Id. On October 20,
2016, the South Carolina Supreme Court denied
Petitioner's petition for a writ of certiorari.
Id. The remittitur was issued November 7, 2016, and
filed on November 18, 2016. Id. Petitioner filed
this habeas corpus petition on November 1, 2017, raising two
grounds for relief:
Ground One: Ineffective Assistance of
Ground Two: Petitioner was denied due
process when trial court relied on legal precedent that was
Id. at 3-4. In his Report, the magistrate judge
found that Petitioner's petition is subject to dismissal
because Petitioner failed to file his application for writ of
habeas corpus in federal court within one year following the
exhaustion of his state court remedies. Id. at 4-7.
objections, Petitioner acknowledges that the history of the
post-conviction proceedings is largely “not disputed,
” and that Petitioner's “petition may have
been untimely.” (ECF No. 22 at 1, 3). However, he
contends that the court should issue an order rejecting the
Report and enable his petition to proceed forward because
exceptional circumstances exist warranting equitable tolling
of the limitations period. Id. at 3. Petitioner
failed to raise the issue of equitable tolling prior to his
objections. In fact, the magistrate judge noted in his
Report, “Petitioner does not present any argument for
equitable tolling.” (ECF No. 17 at 7 n.8). However, the
court will consider Petitioner's argument.
petitioner seeking to invoke equitable tolling must establish
that: (1) extraordinary circumstances, (2) beyond his control
and external to his own conduct, (3) prevented him from
filing on time. Rouse v. Lee, 339 F.3d 238, 247 (4th
Cir. 2003). The Fourth Circuit has cautioned that equitable
tolling of the limitations period is rarely warranted and is
to be reserved “for those rare instances where-due to
circumstances external to the party's own conduct-it
would be unconscionable to enforce the limitation period
against the party and gross injustice would result.”
Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.
2000). Also important is the settled principle that a
petitioner's own lack of diligence in pursuing his
federal remedy may preclude the application of equitable
tolling. See Spencer v. Sutton, 239 F.3d 626, 630
(4th Cir. 2001). Courts have held that “unfamiliarity
with the legal process, lack of representation, or illiteracy
does not constitute grounds for equitable tolling.”
Harris, 209 F.3d at 330-32. Nor are prison
conditions, such as lockdowns or misplacement of legal
papers, normally grounds for equitable tolling.”
Id.; see also Jones v. South Carolina, 2006 WL
1876543, (D.S.C. June 30, 2006) (unpublished) (“Other
courts addressing equitable tolling have found that
‘extraordinary circumstances' are not: having an
inadequate law library, attorney error, claims of actual
innocence, reliance on other inmates' advice, ignorance
of the AEDPA filing deadline, or even (in some instances)
alleges that the history of his underlying case warrants a
finding of exceptional circumstances because he has been
incarcerated in the South Carolina Department of Corrections
(SCDC) with limited resources and limited access to legal
materials. According to Petitioner, he mistakenly believed
that no period of time had expired during the state court
process, which would have provided him additional time to
secure counsel and file the instant petition. Id. at
3-4. Petitioner further argues that he delayed filing his
petition in hopes of being able to retain counsel and, after
some delay, was able to secure present counsel the night