United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
E. Rogers, III, United States Magistrate Judge
a state prisoner, proceeding pro se and in forma
pauperis, confined at McCormick Correctional
Institution, filed a 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.
alleges he was convicted on August 4, 2010, after a jury
trial in the Florence County Court of General Sessions. (ECF
No. 1 at 1-2). SCDC records show Petitioner was convicted of
five different offenses that involved sexual offenses with a
minor. See also ECF No. 1 at 1. Petitioner alleges
the South Carolina Court of Appeals affirmed his conviction
on direct appeal on October 31, 2012, and Petitioner did not
seek further direct review. (ECF No. 1 at 2). Petitioner
alleges he filed a PCR on April 29, 2013, and appealed the
result. (ECF No. 1 at 3-4). The remittitur from the South
Carolina Supreme Court on the PCR was received by the lower
court on September 8, 2017. The Lack date is August
21, 2018. (ECF No. 1 at 15).
the petition in this case is untimely, in an order (ECF No.
5) dated September 6, 2018, the undersigned directed the
Petitioner as follows:
Additionally, it appears Petitioner may have filed this
action beyond the one-year statute of limitations.
Therefore, this order is notice to Petitioner that
the court may dismiss his case based on the running of the
one-year statute of limitations. Section 2244(d)
provides that a petition for writ of habeas corpus must be
filed within one year of the date on which the conviction
being challenged becomes final. The one-year period does
not run ("is tolled") during the time period that a
direct appeal and a post-conviction relief
("PCR")application are pending. Petitioner was
convicted in August 2010, and appealed his conviction, which
was affirmed on October 31, 2012. Petitioner alleges he filed
a PCR on April 29, 2013, and appealed the result. The
remittitur from the South Carolina Supreme Court was received
by the lower court on September 8, 2017. The Lack
date is August 21, 2018. (ECF No. 1 at 15). Thus, it appears
Petitioner is beyond the 1 year statute of limitations by
over 150 days.
Further, § 2244(d)'s one-year statute of limitations
is subject to equitable tolling which could extend the final
date for filing. Lindh v. Murphy, 521 U.S. 320
(1997); Harris v. Hutchinson, 209 F.3d 325 (4th Cir.
2000). A petitioner may be entitled to equitable tolling of
the statute of limitations if he can demonstrate “(1)
extraordinary circumstances, (2) beyond his control or
external to his own conduct, (3) that prevented him from
filing on time.” Rouse v. Lee, 339 F.3d 238,
246 (4th Cir. 2003). In 2010, the United States Supreme Court
considered the issue and held that the statute would be
equitably tolled “only if [the petitioner] shows
‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his
way' and prevented timely filing.” Holland v.
Florida, 560 U.S. 631, 649 (quoting Pace, 544
U.S. at 418)).
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).
(ECF No. 5)(emphasis in original).
did not fully comply with the order and Petitioner did not
file a factual explanation.
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).
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. ...