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McKinney v. Perry

United States District Court, D. South Carolina, Rock Hill Division

February 12, 2019

James William McKinney, Jr., Plaintiff,
v.
Warden, Perry Correctional Institution, Defendant.

          ORDER

         This matter is before the court for review of the Magistrate Judge's Report and Recommendation (“Report”) filed on November 16, 2018. (ECF No. 23.) The Report recommends that the court grant Defendant Warden's (“Defendant”) Motion for Summary Judgment (ECF No. 8) and deny Plaintiff James William McKinney, Jr.'s (“Plaintiff”) Petition for a Writ of Habeas Corpus (ECF No. 1). (Id. at 12.) For the reasons stated herein, the court ACCEPTS the Magistrate Judge's Report (ECF No. 23) and incorporates it herein, GRANTS Defendant's Motion for Summary Judgment (ECF No. 8), and DENIES Plaintiff's Petition for a Writ of Habeas Corpus (ECF No. 1).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The Report sets forth the relevant facts and legal standards, which this court incorporates herein without a full recitation. (ECF No. 23.) As brief background, Plaintiff was found guilty of the following state crimes, in 2001, by a jury: armed robbery and possession of a weapon during the commission of a violent crime (“PWDCVC”); assault and battery of a high and aggravated nature; first-degree burglary and PWDCVC; and kidnapping and PWDCVC. (Id. at 2.) The Spartanburg County Court of General Sessions sentenced Plaintiff to an aggregate sentence of life and ninety-five years of imprisonment. (Id.) Plaintiff directly appealed his case to the South Carolina Court of Appeals, and the South Carolina Court of Appeals affirmed both Plaintiffs' conviction and sentence on January 8, 2003. (Id.) Subsequently, Plaintiff filed a Petition for Rehearing (ECF No. 9-1 at 420-21), and the South Carolina Court of Appeals denied that request on March 20, 2003. (ECF No. 9-1 at 423.) Plaintiff did not appeal to the South Carolina Supreme Court. (ECF No. 23 at 6 n.3.)

         After exhausting his direct appeals, Plaintiff filed an application for post-conviction relief (“PCR”) on May 16, 2003, and his application was denied and dismissed with prejudice on June 10, 2005. (Id. at 424-28; ECF No. 9-4 at 22-34.) Plaintiff filed a Petition for a Writ of Certiorari, which was denied by the South Carolina Court of Appeals on August 29, 2007. (ECF No. 9-4 at 35-40, 54.) Consequently, a remittitur was issued by the South Carolina Court of Appeals on September 14, 2007, and filed with the Spartanburg County Clerk of Court on September 17, 2007. (Id. at 55.) On December 16, 2013, Plaintiff filed an Application for Forensic DNA Testing in the Spartanburg County Court of General Sessions. (Id. at 56-59.) The circuit court denied Plaintiff's Application for Forensic DNA Testing and dismissed it with prejudice. (Id. at 121.) In regard to his application, Plaintiff filed a Petition for a Writ of Certiorari to the South Carolina Court of Appeals on December 16, 2016. (ECF No. 9-5.) The South Carolina Court of Appeals denied Plaintiff's Petition for a Writ of Certiorari on October 10, 2017. (ECF No. 9-7.) A remittitur was issued by the South Carolina Court of Appeals on October 26, 2017, and filed with the Spartanburg County Clerk of Court on October 30, 2017. (ECF No. 9-8.)

         Plaintiff, proceeding pro se, filed his Petition for a Writ of Habeas Corpus (“Petition”) in the United States District Court for the District of South Carolina on March 29, 2018. (ECF No. 1-2.) In his Petition, Plaintiff only brings one ground for relief. (ECF No. 1 at 5.) Plaintiff specifically contends that “[f]alse and misleading D.N.A. evidence and testimony” was “presented at [his] trial.” (Id.) Specifically, Plaintiff attributes the evidence and testimony to a forensic analyst with the South Carolina Law Enforcement Division (“SLED”). (Id.) On May 23, 2018, Defendant argued that Plaintiff's Petition is untimely under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1). (ECF No. 9 at 20-23.) Because of Plaintiff's untimeliness under AEDPA, Defendant requests the court to enter summary judgment in his favor and summarily dismiss Plaintiff's Petition. (Id.) In addition, Defendant emphasized that Plaintiff's ground is not cognizable, which further warrants dismissal. (Id. at 23-26.) The Magistrate Judge issued a Roseboro order on May 24, 2018, a day after Defendant filed his Motion for Summary Judgment.[1] (ECF No. 10.)

         The Magistrate Judge issued her Report on November 16, 2018. (ECF No. 23.) In an extremely thorough and well-reasoned analysis, the Magistrate Judge determined that Plaintiff's Petition is untimely because it is “nine years after the expiration of the statute of limitations” prescribed by AEDPA. (Id. at 7.) The Magistrate Judge also reasoned that two of Plaintiff's arguments were without merit. First, the Magistrate Judge concluded that Plaintiff's DNA application did not toll the statute of limitations because it was filed long after the statute of limitations already expired under 28 U.S.C. § 2244(d)(1). (Id. at 7-8.) Secondly, the Magistrate Judge held that Plaintiff “failed to demonstrate” that he is entitled to an equitable tolling of the statute of limitations because he failed to identify “extraordinary circumstances” warranting an equitable tolling and did not present any evidence showing that it is “more likely than not that no reasonable juror would have convicted him in light of new evidence.” (Id. at 10-12.) The Magistrate Judge informed both parties of their rights to file specific objections to her Report. (Id. at 13.)

         Plaintiff timely objected to the Magistrate Judge's Report on November 23, 2018.[2] (ECF No. 25-2 at 1.) Plaintiff presents two objections to the Magistrate Judge's Report. (ECF No. 25 at 2-3.) First, Plaintiff argues that his “appeal was not final” because additional DNA testing was never conducted, as required by a state court judge, and his application must be construed as part of a collateral proceeding because it “didn't exist until April [2009].” (Id. at 2.) Plaintiff seems to argue that the denial of the application constitutes “extraordinary circumstances” and opines that his case is similar to In re W.Va. State Police Crime Lab, 438 S.E.2d 501 (1993). (See Id. at 2-3.) Second, Plaintiff requests the court to order “a complete, independent forensic DNA analysis in the interest of justice because a reliable DNA analysis is still outstanding.” (Id. at 3.) Defendant replied to Plaintiff's contentions, largely emphasizing that Plaintiff has failed to explain why his application was seven years after his PCR proceedings or the reason for delaying the instant Petition. (ECF No. 26 at 1-2.) Plaintiff did not respond to Defendant's replies.

         II. LEGAL STANDARD

         The Magistrate Judge's Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge only makes a recommendation to this court, and the recommendation has no presumptive weight. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The responsibility to make a final determination remains with the court. Id. at 271. As such, the court is charged with making de novo determinations of those portions of the Report to which specific objections are made. See 28 U.S.C. § 636(b)(1). See also Fed. R. Civ. P. 72(b)(3). In the absence of specific objections to the Magistrate Judge's Report, the court is not required to give any explanation for adopting the Report. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note). Thus, the court may accept, reject, or modify, in whole or in part, the Magistrate Judge's recommendation or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

         The court is required to interpret pro se documents liberally and will hold those documents to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). See also Hardin v. United States, C/A No. 7:12-cv-0118-GRA, 2012 WL 3945314, at *1 (D.S.C. Sept. 10, 2012). Additionally, pro se documents must be construed in a manner, “no matter how inartfully pleaded, to see whether they could provide a basis for relief.” Garrett v. Elko, No. 95-7939, 1997 WL 457667, at *1 (4th Cir. Aug. 12, 1997). Although pro se documents are liberally construed by federal courts, “[t]he ‘special judicial solicitude' with which a district court should view pro se complaints does not transform the court into an advocate.” Weller v. Dep't of Soc. Servs. for Balt., 901 F.2d 387, 391 (4th Cir. 1990).

         III. DISCUSSION

         Plaintiff presents two possible objections to the Magistrate Judge's Report. (ECF No. 26 at 2-3.) First, Plaintiff contends that his appeal was not final because certain DNA tests were never conducted, and his DNA application must be considered a collateral proceeding. (ECF No. 25 at 2.) Second, Plaintiff requests the court to order “a complete, independent forensic DNA analysis in the interest of justice because a reliable DNA analysis is still outstanding.” (Id. at 3.) Plaintiff's first objection is overruled and without merit, while his request for a DNA analysis is not a specific objection for purposes of reviewing the Magistrate Judge's Report and is likewise overruled.

         A. AEDPA's Statute of Limitations and Equitable Tolling

         AEDPA provides that a “[one]-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 [s]tate court.” 28 U.S.C. § 2244(d)(1). Generally, the limitation period begins to run from the latest 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). AEDPA's period of limitations is not jurisdictional, but is ...


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