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Long v. Warden, Broad River Correctional Institution

United States District Court, D. South Carolina

September 7, 2018

William Von Long, #238950, Petitioner,
v.
Warden, Broad River Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge

         William Von Long (“Petitioner”), a prisoner, proceeding pro se and in forma pauperis, confined at Broad River Correctional Institution, filed an Amended Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B) (2)(c) DSC. Having reviewed the petition in accordance with applicable law, the court concludes that it should be summarily dismissed.

         BACKGROUND[1]

         On April 15, 2009, Petitioner was convicted of two counts of armed robbery and one count of possession of a weapon during a violent crime in Horry County. (ECF. No. 8 at 1). Petitioner appealed his convictions on April 20, 2009 to the South Carolina Court of Appeals, which affirmed his conviction on March 23, 2012. It appears Petitioner did not further petition the South Carolina Supreme Court. Petitioner filed his application for post-conviction relief in the state court on November 29, 2012. The remittitur from the South Carolina Supreme Court was received in the lower court on March 2, 2017. The Lack delivery date of the instant Petition is August 9, 2018. .

         Since the petition in this case is untimely, in an order (ECF No. 5) dated August 14, 2018, the undersigned directed the Petitioner as follows:

Upon initial review of the Petition, it appears from the face of the Petition that this case may be untimely filed. This order is notice to Petitioner that the court is considering dismissal of his case based on the running of the one-year statute of limitations. Unless the petitioner provides facts casting doubt on the issue of untimeliness of his Petition and thereby prevent dismissal based on the limitations bar, this case may be subject to dismissal. Accordingly, Petitioner is granted twenty-one (21) days to file a factual explanation with this court to show cause why his Petition should not be dismissed based on the application of the one-year limitation period established by 28 U.S.C. § 2244(d), including but not limited to, factual dispute regarding the relevant dates of filings in state court mentioned and/or facts supporting the application of equitable tolling. See Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003).

         Additionally, the Order cited law in regard to the functioning of the habeas one-year statute of limitations. Petitioner responded with an Amended Petition, answering question 18 on timeliness. (ECF No. 8). Plaintiff stated: “I don't know the statu[te] 2244(d) but it seems like a timerless petition.” (ECF No. 8 at 13, errors in original).

         DISCUSSION

         Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings and motion to proceed in forma pauperis pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).

         With respect to his convictions and sentences, the petitioner's sole federal remedies are a writ of habeas corpus under either 28 U.S.C. § 2254 or 28 U.S.C. § 2241, which remedies can be sought only after the petitioner has exhausted his state court remedies. “It is the rule in this country that assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Claims not so raised are considered defaulted.” Beard v. Green, 523 U.S. 371, 375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)); see also 28 U.S.C. § 2254(b); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973); Picard v. Connor, 404 U.S. 270 (1971). The petition in the above-captioned case is untimely.

         The AEDPA, 28 U.S.C. 2244(d) provides:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was ...

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