United States District Court, D. South Carolina, Greenville Division
BRYAN HARWELL UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Report and Recommendation
(“R&R”) of United States Magistrate Judge
Kevin F. McDonald. [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.
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).
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, 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 .
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.
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.
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.
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,  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.
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 ...