United States District Court, D. South Carolina, Anderson/Greenwood Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.
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.
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.)
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. (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.
Pro Se Pleadings
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).
Report and Recommendation
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.
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.
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).
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 ...