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Ware v. McFadden

United States District Court, D. South Carolina

October 29, 2018

Salvador Ware #372203, Petitioner,
v.
Warden Joseph McFadden, Palmer Pre-release Center, Respondent.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge.

         Petitioner, a state prisoner, proceeding pro se and in forma pauperis, confined at the Palmer Pre-Release Center, 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.

         BACKGROUND[1]

         Petitioner alleges he plead guilty and was convicted on April 17, 2017, in the Horry County Court of General Sessions. (ECF No. 1 at 1-2). SCDC records show Petitioner was convicted of one offense, strong arm robbery. See also ECF No. 1 at 1. Petitioner did not file a direct appeal. His conviction became final on April 27, 2017. S.C.C.A.R. 203(b)2). Petitioner filed an untimely PCR on July 2, 2018. A conditional order of dismissal was entered on September 25, 2018, giving Petitioner 20 days to show why the order should not become final. Said 20 days has passed and nothing has been filed in the PCR court. Regardless of Petitioner not yet fully exhausting his state remedies, the Petition is untimely. The Lack date is September 26, 2018. (ECF No. 1 at 14).

         Since the petition in this case is untimely, in an order (ECF No. 5) dated September 27, 2018, the undersigned directed the Petitioner as follows:

Additionally, it appears Petitioner has 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 on April 17, 2017, his conviction was not appealed and became final on April 27, 2017 (SC App. R. 203), his PCR was filed on July 2, 2018, and is pending a conditional dismissal order as of September 25, 2018. Thus, it appears Petitioner is beyond the 1 year statute of limitations, by over sixty 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).

         Petitioner did not fully comply with the order and did not file a factual explanation.

         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. ...


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