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Smith v. Warden of Perry Correctional Institution

United States District Court, D. South Carolina, Anderson/Greenwood Division

April 22, 2019

Ronald Smith, Petitioner,
v.
Warden of Perry Correctional Institution, Respondent.

          ORDER AND OPINION

          RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.

         Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 25) recommending that Respondent's motion for summary judgment (Dkt No. 19) be granted and Petitioner's petition be dismissed. For the reasons set forth below, the Court adopts the R & R as the order of the Court and grants Respondent's motion for summary judgment.

         I. Background

         On September 14, 2011, Petitioner Ronald Smith pled guilty to murder and, the same day, was sentenced to 31 years' imprisonment with credit for time served. (Dkt. No. 1 at 1; 18-1 at 227.) Petitioner ultimately filed a direct appeal, which was dismissed on November 23, 2011, and a remittitur issued returning the case on December 14, 2011. (Dkt. No. 18-3.) On June 26, 2012, Petitioner filed an application for post-conviction relief ("PCR") in state court. (Dkt. No. 18-1 at 148.) The PCR court ultimately denied his application in an order dated January 30, 2015. (Id. at 224.) Represented by counsel, Petitioner appealed the order (Dkt. No. 18-5) and filed a petition for a writ of certiorari. (Dkt. No. 18-6.) The petition was referred to the South Carolina Court of Appeals, which denied certiorari on November 21, 2017 and issued a remittitur, which was filed by the to the Orangeburg County Clerk on December 8, 2017. (Dkt. Nos. 18-8; 18-9.)

         Petitioner, proceeding pro se, filed this Petition under 28 U.S.C. § 2254. (Dkt. No. 1.) Petitioner asserts two grounds of relief: ineffective assistance of counsel for a failure to adequately investigate the case, and an involuntary guilty plea. (Dkt. No. 1 at 5 - 9.) Both turn on the same facts, as Petitioner alleged that his attorney failed to fully investigate the incident, and, among other things that he did not know about a relevant investigative report at the time of his plea and that the sentencing judge did not go over Petitioner's mental health history or knowledge of the maximum sentence he could receive at the plea hearing.[1] (Id. at 6.) Respondent moved for summary judgment. (Dkt. Nos. 18, 19.) March 14, 2019, the Magistrate Judge recommended the petition be dismissed as time-barred under 28 U.S.C. § 2244(d). Petitioner did not file objections.

         II. Legal Standard

         A. Pro Se Pleadings

         This Court liberally construes complaints filed by pro se litigants to allow the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. See Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990).

         B. Report and Recommendation

         The Magistrate Judge makes only a recommendation to this Court that has no presumptive weight. The responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court is charged with making a de novo determination of those portions of the R & R to which specific objection is made. Fed.R.Civ.P. 72(b)(2). Where the plaintiff fails to file any specific objections, "a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). Petitioner did not file objections, and the R & R is reviewed for clear error.

         III. Discussion

         A habeas petition must be filed within one year of the latest of several dates given by statute. 28 U.S.C. § 2244(d)(1). The most common triggering date is the denial of Petitioner's direct appeal to the state court of last resort. 28 U.S.C. § 2244(d)(1)(A). The one-year limitations period accrues on the day following the date of state court of last resort's decision, not the date of issuance of its mandate or remittitur. Gonzalez v. Thaler, 132 S.Ct. 641, 654(2012). Under South Carolina law, the time for pursuing direct review in the Supreme Court of South Carolina expires fifteen days after the filing of the Court of Appeals' decision. See S.C. App. Ct. R. 221(a); 242(c). Therefore, Petitioner's one-year statute of limitations began to run on December 8, 2011, fifteen days after the Court of Appeals dismissed his direct appeal on November 23, 2011.

         However, the one-year limitations period is tolled during the pendency of PCR proceedings. 28 U.S.C. § 2244(d)(2). The PCR tolling period begins when an initial PCR application is properly filed in state court. Artuz v. Bennett, 531 U.S. 4, 8 (2000). It includes the time during which the denial of the PCR application is on appeal within state courts, including the time between the PCR court's denial of the application and the filing of a timely notice of appeal. Evans v. Chavis, 546 U.S. 189, 191, 198, 201 (2006). But it does not include certiorari review by the United States Supreme Court. Lawrence v. Florida, 549 U.S. 327, 329 (2007). The tolling period ends when the final state appellate decision affirming denial of the application is filed in the state circuit court. Beatty v. Rawski, 97 F.Supp.3d 768, 780 (D.S.C. 2015).

         The Magistrate Judge correctly calculated that the statute of limitations ran for 201 days following Petitioner's direct appeal of his conviction, from December 8, 2011 until he filed his PCR application on June 26, 2012, leaving 164 days in his limitations period. The tolling period then ended on December 8, 2017, following the filing of the remittitur from the denial of certiorari regarding Petitioner's PCR application in the Orangeburg County Clerk's office. Accordingly, the ...


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