United States District Court, D. South Carolina, Aiken Division
CAMERON MCGOWAN CURRIE, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Petitioner's pro se
petition for writ of habeas corpus, filed in this court
pursuant to 28 U.S.C. § 2254.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2)(c), DSC, this matter was referred to United
States Magistrate Judge Shiva V. Hodges for pre-trial
proceedings and a Report and Recommendation. On September 24,
2018, Respondent filed a motion for summary judgment. ECF No.
20. Because Petitioner is proceeding pro se, a Roseboro Order
was mailed to him on September 25, 2018, advising him of the
importance of a dispositive motion and the need to file an
adequate response. ECF No. 21. Petitioner did not file a
response to the motion for summary judgment. On October 30,
2018, the Magistrate Judge entered an order directing
Petitioner to advise the court whether he wished to continue
with the case and to file a response to Respondent's
motion for summary judgment. ECF No. 23. Petitioner failed to
do so within the time allotted. The Magistrate Judge then
issued a Report recommending the action be dismissed with
prejudice for failure to prosecute. ECF No. 25. The
Magistrate Judge advised Petitioner of the procedures and
requirements for filing objections to the Report and
Recommendation and the serious consequences if he failed to
do so. Petitioner filed objections to the Report on December
3, 2018, noting difficulties getting his legal work done
while his Institution was on lockdown and requesting
appointment of an attorney. ECF No. 27. On December 5, 2018,
the court entered an Order declining to dismiss for failure
to prosecute, but denying Petitioner's request for an
attorney, and referring the matter back to the Magistrate
Judge. ECF No. 28. Petitioner was given until January 31,
2019, to respond to Respondent's motion for summary
judgment. Id. He timely filed a response in
opposition to summary judgment. ECF No. 30.
February 25, 2019, the Magistrate Judge entered a Report
recommending Respondent's motion for summary judgment be
granted. ECF No. 31. Petitioner was notified he could file
objections to the Report by March 11, 2019. Id. at
15. On March 7, 2019, the court received a letter from
Petitioner titled “Declaration of Johnnie
Frazier.” ECF No. 33.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. See Mathews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo determination of
any portion of the Report and Recommendation of the
Magistrate Judge to which a specific objection is made. The
court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the
matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b).
Report of the Magistrate Judge recommends dismissal because
the statute of limitations bars Petitioner's claims and
Petitioner has demonstrated no grounds for equitable tolling.
ECF No. 31. After a thorough recitation of the dates and
actions taken by Petitioner in his state Post Conviction
Relief case and this Petition, the Report concludes
Petitioner had until March 20, 2018 - at the latest - to file
his § 2254 petition. Id. at 14. Petitioner,
however, filed on May 29, 2018, over two months late.
Petitioner's filings address the statute of limitations
issue or entitlement to equitable tolling. In his letter
Declaration, Petitioner notes he is housed at Lieber
Correctional Institution, which remains on lockdown. ECF No.
33. He states he has “filed all pertinent paperwork to
the best of [his] ability” while being on lockdown and
without an attorney to assist. Id. He asks the court
to “accept my paperwork because these things are out of
my control.” Id. However, he does not request
an extension of time to file further objections.
letter does not state any general or specific objections to
the Report, or any substantive information about his case.
ECF No. 33. His response in opposition to summary judgment
argues the state's attorney utilized “malicious
prosecution tactics, ” his alibi was not included in
the jury instructions, and the eyewitness was untruthful and
changed her statements.ECF No. 30. He also notes his attorney
would not allow him to take the stand and testify about
statements potentially pointing to another suspect.
found by the Magistrate Judge, Petitioner's § 2254
petition is untimely under AEDPA's one-year statute of
limitations. Petitioner had one year from the date on which
the state court judgment became final to file his § 2254
petition. 28 U.S.C. § 2244(d)(1)(A). However, this
period is tolled while a “properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending.”
state court convictions for possession of a weapon during a
violent crime, burglary, and robbery were affirmed by the
South Carolina Court of Appeals on August 25, 2010. ECF No.
19-3 at 104-105. The remittitur was issued May 5, 2011. ECF
No. 19-1. Thereafter, Petitioner filed a pro se application
for post-conviction relief (“PCR”) on July 29,
2011. ECF No. 19-3 at 106. This was dismissed on January 11,
2016, after multiple amendments by Petitioner and his
counsel, and a hearing. Id. at 187-205. Petitioner
filed a motion to alter or amend, which was denied.
Id. at 215. Petitioner, through appellate counsel,
then appealed the denial of his PCR and motion to alter or
amend by writ of certiorari to the South Carolina Supreme
Court. ECF Nos. 19-4, 19-5. The South Carolina Supreme Court
transferred the appeal to the Court of Appeals, which denied
certiorari on January 16, 2018. ECF No. 19-7. The remittitur
was issued February 1, 2018.
filed this § 2254 Petition on May 29,
Petitioner neither petitioned for rehearing nor certiorari
with the South Carolina Supreme Court, his state convictions
became final on September 9, 2010, when the appeal period
expired fifteen days after the Court of Appeals' Order
affirming his convictions. His PCR application was filed on July
29, 2011, 322 days after his convictions became final. At
that point the statute of limitations tolled with 43 days
left. The denial of Petitioner's state PCR claim became
final either on January 16, 2018, when the South Carolina
Court of Appeals opinion was filed, or on February 1, 2018,
when the remittitur was filed. However, even giving Petitioner
the benefit of the doubt (that the PCR action was final at
the latest possible date, February 1, 2018), his § 2254
Petition was still filed ...