United States District Court, D. South Carolina, Florence Division
ORDER AND OPINION
Richard Mark Gergel, United States District Court Judge.
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 13) recommending
that Petitioner's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 be dismissed. For the
reasons set forth below, the Court adopts the R & R as
the Order of the Court, dismisses with prejudice
Petitioner's petition, and denies a Certificate of
Salvador Ware is a state prisoner confined at the Palmer
Pre-Release Center in South Carolina. Petitioner is
proceeding pro se to seek a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In April 2017, Petitioner
was convicted in South Carolina state court of strong arm
robbery and did not file a direct appeal. In July 2018,
Petitioner filed an untimely application for post-conviction
relief, and in September 2018 the state court issued a
conditional order of dismissal giving Petitioner twenty days
to show cause for why dismissal should not be finalized.
Petitioner did not respond. Petitioner filed this petition
for a writ of habeas corpus on September 26,
Magistrate Judge makes a recommendation to the Court that has
no presumptive weight, and the responsibility to make a final
determination remains with the Court. See, e.g., Mathews
v. Weber, 423 U.S. 261, 270-71 (1976). The Court may
"accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1)(C). Where there are
specific objections to the R & R, the Court "makes a
de novo determination of those portions of the
report or specified proposed findings or recommendations to
which objection is made." Id. In the absence of
objections, the Court reviews the R & R to "only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation."
Fed.R.Civ.P. 72 advisory committee's note. Where there
are no objections, the Court need not give any explanation
for adopting the Magistrate Judge's analysis and
recommendation. See, e.g., Camby v. Davis, 718 F.2d
198, 199 (4th Cir. 1983) ("In the absence of objection
... we do not believe that it requires any
Court carefully reviewed Petitioner's objections to the R
& R, including the objection that Petitioner did not have
a legal understanding at the time to know that his state
court lawyer violated the law and, therefore, that
Petitioner's true time starts running when he determined
he should not have pleaded to the state court charges and
that there was gross negligence by both parties. (Dkt. No.
Court finds that the Magistrate Judge ably addressed the
issues and correctly concluded that the petition should be
dismissed as untimely. "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 date of. . .
the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking
such review." 28 U.S.C. § 2244(d)(1)(A). Petitioner
was convicted on April 17, 2017 (Dkt. No. 1 at 1), he did not
file a direct appeal, and the conviction became final on
April 27, 2017. See S.C. App. Ct. R. 203(b)(2)
(mandating that notice of direct appeal must be filed and
served on all respondents within ten days after sentence is
imposed or after receiving written notice of entry of the
order of judgment). The petition's delivery date was
September 26, 2018. (Dkt. No. 1 at 14.) See Houston v.
Lack, 487 U.S. 266, 270 (1988) (concluding that
prisoner's petition is filed when delivered to prison
authorities for forwarding to District Court). The one-year
limitation period may be equitably tolled "only if [the
Petitioner] shows (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstances
stood in his way and prevented timely filing."
Holland v. Florida, 560 U.S. 631, 649 (2010)
(internal citation and quotation marks omitted). But
Petitioner has made no showing, nor is one readily apparent
on the record, including in Plaintiffs objections to the R
& R. As a result, the Magistrate Judge correctly
concluded that, when given an appropriately liberal
construction, Petitioner's petition is subject to
dismissal as time-barred.
Certificate of Appealability
governing law provides:
(c)(2) A certificate of appealability may issue . . . only if
the applicant has made a substantial showing of the denial of
a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate
which specific issue or issues satisfy the showing required
by paragraph (2).
28 U.S.C. § 2253; see also Rule 1(b) Governing
Section 2254 Cases in the United States District Courts
("The district court may apply any or all of these rules
to a habeas corpus petition not covered by [28 U.S.C. §
2254]."). A prisoner satisfies the standard by
demonstrating that reasonable jurists would find the
Court's assessment of his constitutional claims debatable
or wrong and that any dispositive procedural ruling by the
district court is likewise debatable. See Miller-El v.
Cockrell,537 U.S. 322, 336 (2003); Slack v.
McDaniel,529 U.S. 473, 484 (2000); Rose v.
Lee,252 F.3d 676, 683 (4th Cir. 2001). Here, the legal
standard for the issuance of a certificate of appealability
has not been met because a reasonable jurist would not find