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Wright v. Anderson

United States District Court, D. South Carolina

March 13, 2019

Jeremy Wright, Petitioner,
v.
Joel Anderson, Respondent.

          ORDER AND OPINION

         Before the court for review is the Magistrate Judge's Report and Recommendation (“Report”) filed on October 25, 2018 (ECF No. 31). The Report recommends dismissing Petitioner Jeremy Wright's Petition for Writ of Habeas Corpus (ECF No. 1) as time barred and dismissing Respondent's Motion for Summary Judgment (ECF No. 14) as moot. (ECF No. 31 at 20.) For the reasons that follow, the court ACCEPTS and MODIFIES the Magistrate Judge's Report, DISMISSES Petitioner's Habeas Petition as untimely, and DENIES AS MOOT Respondent's Motion for Summary Judgment as moot.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On January 23, 2018, Petitioner, represented by counsel, filed a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, challenging his 2009 conviction and sentence in South Carolina state court. (ECF No. 1.) Petitioner asserts four grounds for habeas relief. First, Petitioner claims his trial counsel was ineffective by failing (1) “to argue that the prosecution acted in bad faith in destroying evidence”; (2) “to object to the Solicitor's opening statement”; (3) “to review witness statements”; (4) “to strike juror 112”; (5) “to obtain a ballistics report”; and (6) “to object to testimony concerning photo line-up.” (Id. at 5.) Second and third, Petitioner claims “prosecutorial misconduct” and a violation of Due Process based on the alleged destruction of evidence by the Deputy Solicitor[1] in his case. (Id. at 7-8.) Fourth, Petitioner claims “he was denied his right to [D]ue [P]rocess and his right to a trial by a fair and impartial jury when one of his jurors failed to disclose that she was related to a witness.” (Id. at 10.) Petitioner alleges that “Juror 124 failed to disclose that she was related to [the] lead investigator in the case.” (Id.)

         On April 4, 2018, Respondent filed a Motion for Summary Judgment. (ECF No. 14.) Respondent concedes that Petitioner has satisfied the exhaustion requirement, stating “[Petitioner's] [Habeas] Petition should not be dismissed in order to pursue available state remedies as there are none.” (ECF No. 13 at 15.) As to the timeliness of Petitioner's Habeas Petition, Respondent states,

1The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)] provides for a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). By Respondent's calculation, Petitioner timely filed his Petition within the limitations period because only three hundred forty-five (345) days of un-tolled time elapsed between the date his conviction be[came] final and the date he filed his [H]abeas Petition.

(Id. at 17 n.5.) As to Petitioner's ineffective assistance of counsel claims, Respondent argues, generally, that

the state courts' rejection of [these] claims was not “contrary to” and did not involve an “unreasonable application of” clearly established United States Supreme Court precedent under § 2254(d)(1). Also, the decision rejecting these claims was not “based on an unreasonable determination of the facts” in light of the state court record.[2]

(Id. at 18 (citing § 2254(d)(2)).) As to Petitioner's claims of prosecutorial misconduct based on the alleged destruction of evidence, Respondent states “[t]he PCR judge found that Petitioner's claim was beyond the statutory jurisdiction of [South Carolina's] Post-Conviction Relief Act because it had been originally presented at trial and could have been presented on direct appeal.” (Id. at 59.) Accordingly, Respondent argues these claims are “procedurally defaulted under Coleman[ v. Thompson, 501 U.S. 722 (1991), ] and the independent and adequate state ground rule.”[3] (Id.) Additionally, Respondent asserts that “Petitioner cannot show cause for the default and prejudice from the default of these claims . . . or that a fundamental miscarriage of justice will occur if the claims are not heard, i.e., an assertion of actual innocence.” (Id. at 60.)

         On June 8, 2018, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. (ECF No. 23.) In his Response, Petitioner only addressed his claim that his trial counsel was ineffective for failing to argue the State acted in bad faith in destroying evidence.[4](Id. at 2.) Petitioner asserts that the Deputy Solicitor in his case “admitted that it was his belief that the evidence was destroyed because there was ‘almost an assumption that since he was convicted in federal court, well, the State's not going to do anything with it.'” (Id. at 6.) Petitioner argues “[t]he State acted in objective bad faith when the officer failed to preserve [the evidence] operating under the . . . ‘assumption' that Petitioner would not be tried in state court.” (Id.) Petitioner asserts that based on United States v. Elliott, 83 F.Supp.2d 637 (E.D. Va. 1999), “the PCR court's ruling that . . . counsel was not ineffective for failing to argue bad faith is contrary to federal precedent.”[5] (Id.)

         On September 19, 2018, the Magistrate Judge requested “additional briefing regarding the timeliness of this case.” (ECF No. 26.) The Magistrate Judge found that,

After a review of the Petition and the record in this case, the Petition appears to be subject to dismissal because it is time barred. Although Respondent did not raise the statute of limitations issue, a federal court may raise the issue sua sponte. See Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002). Once raised, “a court must accord the parties fair notice and an opportunity to present their positions” on the issue. Day v. McDonough, 547 U.S. 198, 210 (2006).
The South Carolina Court of Appeals affirmed Petitioner[']s conviction by order filed on May 30, 2012 [Doc. 13-6], and Petitioner did not seek further review. Consequently, Petitioner had one year from June 14, 2012, fifteen days after the South Carolina Court of Appeals order was filed, to file a federal habeas petition. 28 U.S.C. § 2244(d)(1); Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (holding that a judgment becomes final for purposes of § 2244(d)(1) when the time for pursuing direct review in [the United States Supreme] Court, or in state court, expires); S.C. App. Ct. R. 221(a), 242(c) (establishing that a decision of the South Carolina Court of Appeals is not final for purposes of petitioning the Supreme Court of South Carolina for review until a motion for rehearing has been acted on by the Court of Appeals, and such motion must be filed within fifteen days of the Court of Appeals' decision). Petitioner filed his PCR application on September 10, 2012 [App. 45965], such that 88 days of the one-year limitations period had elapsed before Petitioner filed his PCR application. The one-year period in which to file a federal habeas petition is tolled during the pendency of a PCR application or other collateral relief properly filed in state court, 28 U.S.C. § 2244(d)(2); therefore, the statute of limitations was tolled during the period the PCR application was pending from September 10, 2012, until March 2, 2017, when the remittitur from the appeal from the denial of Petitioner[']s PCR application was filed based on the Dillon County Fourth Judicial Circuit Public Index, see Beatty v. Rawski, 97 F.Supp.3d 768, 77[7] (D.S.C. 2015) (holding that final disposition of a post-conviction proceeding in South Carolina, for purposes of determining the date when a case is no longer pending under § 2244(d)(2), does not occur until the remittitur is filed in the circuit court). Thus, the one-year limitations period began to run again on March 2, 2017, and expired 277 days later on December 4, 2017. As a result, the Petition filed on January 23, 2018, more than one month after the expiration of the limitations period appears to be time barred.
Accordingly, the parties shall present their positions on the one-year limitation[s] period.

(ECF No. 26.)

         On September 26, 2018, Respondent submitted additional briefing as requested by the court. (ECF No. 28.) Respondent agreed with the Magistrate Judge that Petitioner's Habeas Petition is untimely under § 2244(d) and also argued that Petitioner is not entitled to equitable tolling. (Id. at 3-8.) Respondent further asserted that he “ha[d] not intentionally waived th[e] affirmative defense [of statute of limitations] in this case. Rather, Respondent failed to assert the statute of limitations as the result of inadvertence and miscalculation.” (Id. at 11-12.) Finally, Respondent argued the interests of justice would be better served by dismissing Petitioner's Habeas Petition as time barred and that Petitioner has not been significantly prejudiced by the delayed focus on the limitations issue. (Id. at 13.) Respondent noted that ‚Äúthere have not been any court proceedings and the only actions occurring in the interim were the filing of Petitioner's ...


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