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Kirkman v. Lewis

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

March 20, 2019

RAHIEM KIRKMAN, Petitioner,
v.
WARDEN SCOTT LEWIS, Respondent.

          OPINION AND ORDER

          Bruce Howe Hendricks United States District Judge

         Petitioner Rahiem Kirkman (“Petitioner”), proceeding pro se, filed this habeas relief action pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this matter was referred to United States Magistrate Thomas E. Rogers, for pre-trial proceedings and a Report and Recommendation (“Report”).

         BACKGROUND

         On April 3, 2018, Respondent Warden Scott Lewis (“Respondent”), filed a motion for summary judgment, along with a return and memorandum. (ECF Nos. 17 & 18.) Since Petitioner is pro se in this matter, the Magistrate Judge entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), on April 3, 2018, advising Petitioner of the importance of a dispositive motion and of the need for him to file an adequate response to Respondent's motion. (ECF No. 19.) In that order, Petitioner was advised of the possible consequence of dismissal if he failed to respond adequately. Petitioner filed a response in opposition to the motion for summary judgment on May 10, 2018. (ECF No. 24.) On May 17, 2018, Respondent filed a reply. (ECF No. 25.) Magistrate Judge Rogers considered the parties' submissions and the record in this case, and on August 15, 2018, issued a Report recommending that Respondent's motion for summary judgment (ECF No. 17) be granted, and the petition for a writ of habeas corpus be denied as untimely filed. (See ECF No. 26.)

         The Magistrate Judge advised Petitioner of his right to file specific objections to the Report. (ECF No. 26-1.) After having been granted an extension of time (ECF No. 30), Petitioner filed his objections on September 24, 2018. (ECF No. 33.) The Report sets forth the relevant factual and procedural background from the trial and post-conviction relief (“PCR”) proceedings, which is undisputed (see ECF No. 26 at 2-3), as well as the relevant legal standards, and the Court incorporates them here without recitation.[1]

         STANDARD OF REVIEW

         The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is 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). However, the Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         DISCUSSION

         Petitioner filed his § 2254 petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997). The statute of limitations for § 2254 petitions is set forth in 28 U.S.C. § 2244, which states:

(d)(1) 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 of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the ...

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