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Monroe v. Louis

United States District Court, D. South Carolina, Greenville Division

March 15, 2019

Joshua Andrew Monroe, Petitioner,
v.
Warden Louis, Respondent.

          ORDER

          R. BRYAN HARWELL UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Report and Recommendation (“R&R”) of United States Magistrate Judge Kevin F. McDonald.[1] [ECF No. 27]. The Magistrate Judge recommends the Court grant Respondent Warden Louis's motion for summary judgment [ECF No. 15] and dismiss as untimely Petitioner Joshua Andrew Monroe's pro se petition under 28 U.S.C. § 2254 (the “§ 2254 petition”) [ECF No. 1] with prejudice. R&R at 11, 14.

         Standard of Review

         The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge's recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a de novo review of those portions of the R&R to which specific objections are made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). However, the Court need not conduct a de novo review of “general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate [Judge]'s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R&R, the Court reviews only for clear error. Diamond v. Colonial Life & Accident Insurance Co., 416 F.3d 310, 315 (4th Cir. 2005).

         Discussion [2]

         Petitioner, a state inmate at the Perry Correctional Institution of the South Carolina Department of Corrections, brings this action pro se under 28 U.S.C. § 2254 for a writ of habeas corpus by a person in state custody against Respondent. See Pet. at 1 [ECF No. 1]. In support of his § 2254 petition filed on or about February 22, 2018[3], Petitioner raises two grounds: (1) “the courts erred in not entering into the official record the plea taken by Judge Nicholson”; and (2) “Judge Young erred in replacing Judge Nicholson and not familiarizing himself with the case and then making a sentence on a case that had no official judgment.” Pet. at 5, 7 .

         On May 22, 2018, Respondent filed the instant motion for summary judgment. [ECF No. 15]. On or about June 15, 2018, Petitioner filed a response in opposition [ECF No. 19], and on June 21, 2018, Respondent filed a reply thereto. [ECF No. 21]. On or about July 3, 2018, Petitioner filed a sur reply. [ECF No. 22]. On January 7, 2019, the Magistrate Judge issued the R&R, recommending the Court grant Respondent's motion for summary judgment and dismiss the case because Petitioner's grounds for relief are procedurally barred as untimely and, furthermore, fail on the merits. See R&R at 7-11 (untimeliness), 11-13 (merits review). Also, the R&R declines to address an additional ground raised for the first time in Petitioner's response to the motion for summary judgment. R&R at 14. The Magistrate Judge specifically advised the parties of the procedure for filing objections to the R&R and the consequences if they failed to do so. R&R at 15.

         On or about February 14, 2019, after receiving an extension of time, Petitioner timely filed objections to the R&R. [ECF No. 36]. In his objections, Petitioner asserts the Magistrate Judge erred in: (1) finding that the § 2254 petition is barred by the AEDPA statute of limitations, Objs. at 1-3; (2) adopting Respondent's “mischaracterization” of the state court record, id. at 3-4; (3) the factual findings on the § 2254 petition's second ground, id. at 4-5; and (4) failing to consider Petitioner's new allegations raised via his response in opposition to the motion for summary judgment. Id. at 6-7.

         1. First Objection

         In the first objection, Petitioner argues his petition is timely because remittitur was issued on October 11, 2012. Objs. at 2. He further contends that even if it was untimely, he is entitled to equitable tolling. Id. at 3. As explained below, the Court agrees with the R&R that the § 2254 petition was untimely by one day and Petitioner is not entitled to equitable tolling.

         a. Timeliness

         As applied to this case, the AEDPA's one-year statutory deadline runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Properly filed applications for state post-conviction or other collateral review (“PCR proceedings”) toll this deadline. 28 U.S.C. § 2244(d)(2). This means that state PCR proceedings suspend the one-year deadline; they do not restart the clock. Harris v. Hutchinson, 209 F.3d 325, 327-28 (4th Cir. 2000). Here, Petitioner was sentenced on February 3, 2011, and his notice of direct appeal was dismissed on September 18, 2012. His time for seeking a petition for rehearing expired 15 days later; therefore, his conviction became final on October 3, 2012-the date the one-year AEDPA deadline commenced. See Rule 221(a), SCACR (15-day deadline). On September 17, 2013-349 days after the AEDPA deadline began to run and with 16 days left-Petitioner timely filed a state PCR application, [4] stopping the AEDPA clock. [See ECF No. 16-1 at 85]. The state PCR action concluded on February 5, 2018, when the Clerk of Court filed the remittitur from the PCR appeal, [see ECF No. 16-14], and the AEDPA clock began to run again with 16 days left. Von Long v. Warden, Broad River Corr. Inst., Civil Action No. 4:18-cv-02223-RBH, 2018 WL 5800848 (D.S.C. Nov. 6, 2018) (citing Beatty v. Rawski, 97 F.Supp.3d 768, 775-76 (D.S.C. 2015)) (holding that, for purposes of determining the date when a case is no longer pending under § 2244(d)(2), final disposition of a PCR proceeding in South Carolina occurs when the remittitur is filed in the state circuit court). On February 21, 2018, the AEDPA deadline expired. On February 22, 2018, Petitioner filed the § 2254 petition, untimely by one day. Therefore, the Court agrees with the R&R that the § 2254 petition is barred as untimely by the AEDPA's one-year deadline.

         b. Equitable Tolling

         Petitioner asserts equitable tolling is warranted because he “was not informed of the dismissal of his direct appeal until March 21, 2013 upon receiving [notice] from Chief Appellate Defender Robert M. Dudek.” Objs. at 4. To equitably toll the AEDPA deadline, Petitioner has the burden of showing: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Von Long, 2018 WL 5800848, at *2 (citing Holland v. Florida, 560 U.S. 631, 645 (2010)). The Court agrees with the R&R that Petitioner is not entitled to equitable tolling because he has not shown ...


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