United States District Court, D. South Carolina, Florence Division
L. Wooten Chief United States District Judge
Dupree Evans, proceeding pro se and in forma
pauperis, filed this action on August 4, 2017, seeking
habeas corpus relief pursuant to 28 U.S.C. § 2254. ECF
No. 1. On November 7, 2017, Respondent filed a Motion for
Summary Judgment and a Return and Memorandum. ECF Nos. 20,
21. Subsequently, Petitioner filed a response in opposition
to the summary judgment motion, ECF No. 40, to which
Respondent replied, ECF No. 41.
matter now comes before this Court for review of the Report
and Recommendation (the Report) filed on May 24, 2018, by
United States Magistrate Judge Thomas E. Roger, III, to whom
this case was previously assigned pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Local Civil Rule 73.02, (D.S.C.). ECF
No. 42. 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 objections stating that the petition was
filed timely and he is entitled to equitable tolling. ECF No.
48. Respondent filed a reply to Petitioner's objections
on July 5, 2018. 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
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 case law and
filings. The Report sets forth the relevant dates related to
the one-year statute of limitations of the Petitioner's
filing. ECF No. 42 at 19-22. In his objections, Petitioner
argues that this action is not untimely because there are
pending motions in his PCR action. ECF No. 48 at 5. However,
Respondent has submitted evidence that the petition for
Post-Conviction Relief was dismissed. The record reflects
that Petitioner received notice that pending motions in the
PCR action were denied, the case was dismissed, and his
motion for reconsideration was denied. In addition,
Petitioner appealed, suggesting that he is aware that the
denial of his PCR action was final. For these reasons,
Petitioner's objections do not cure the untimeliness of
the current petition. Based on the careful factual and legal
analysis in the Report, this Court concludes that the
Magistrate Judge was correct in determining that the habeas
petition was filed after the time limitation had run.
Report, the Magistrate Judge also addresses equitable
tolling, 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 argues in his objections that he is
entitled to equitable tolling because he is innocent. ECF No.
48 at 7-9. The Court has carefully reviewed the Report and
relevant filings in connection with this matter and concludes
that Petitioner has not stated a basis for equitable tolling
or a basis for not accepting the detailed factual and legal
analysis by the Magistrate Judge.
after careful consideration, the Court ACCEPTS the Report,
ECF No. 42, and overrules Petitioner's objections, ECF
No. 48. Respondent's motion for summary judgment, ECF No.
20, is hereby GRANTED, and the petition, ECF No. 1, is
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 ...