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 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.
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).
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
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 did not file a
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. ...