United States District Court, D. South Carolina, Florence Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on Petitioner's application
for writ of habeas corpus, filed in this court pursuant to 28
U.S.C. § 2254. ECF No. 1. Petitioner claims plea counsel
was ineffective because he urged Petitioner to plead guilty
based on a trial judge's upcoming adverse ruling on his
motion to suppress, rather than going to trial, preserving
the issue, and appealing. Id. at 4. Petitioner also
argues his guilty plea was involuntary because his counsel
promised a reduction in sentence for cooperation, which did
not occur. Id. at 14. This matter is before the
court on Petitioner's Motion to Set Aside Final Order
pursuant to Fed.R.Civ.P. 60(b) filed June 10, 2019. ECF No.
39. For the reasons set forth below, Petitioner's motion
December 3, 2018, Respondents filed a return and a motion for
summary judgment. ECF Nos. 16, 17. Petitioner filed a
response in opposition to the summary judgment motion on
December 16, 2018. ECF No. 19. This response in opposition
was filed by counsel. However, on April 4, 2019, well after
filing the response, Petitioner's counsel moved to
withdraw based on Petitioner's request to proceed pro se.
ECF No. 23. The court ordered counsel to forward her motion
and its Order to Petitioner, and notified Petitioner the
motion would be granted if he did not submit a written
objection within ten days. ECF No. 25. Counsel filed the
certificate of service on April 11, making Petitioner's
response due April 26 (including service days). ECF Nos. 27,
28. On April 29, the court granted counsel's motion to
withdraw, and Petitioner became a pro se litigant. ECF No.
30. The same day, the Magistrate Judge entered a Report
recommending Respondents' motion for summary judgment be
granted. ECF No. 33. The Magistrate Judge advised Petitioner
of the procedures and requirements for filing objections to
the Report and the serious consequences if he failed to do
so. Objections to the Report were due May 16, including
service days. On May 3, Petitioner replied to the Order
regarding withdrawal of counsel, noting he consented to
counsel being relieved and that “Petitioner hereby will
be responsible for his case.” ECF No. 35. He filed no
objections to the Report. On May 23, with no objections from
Petitioner, the court entered an Order adopting the Report
and granting summary judgment for Respondents. ECF No. 36.
instant motion was filed by Petitioner on June 10, arguing he
requested his attorney file an “amendment” to
Petitioner's response in opposition to summary judgment,
and when she declined saying it would not be in his best
interest, he informed her he wished to proceed pro se.
Id. He also argues he should have an opportunity to
file his Amendment to the response in opposition to summary
judgment and contending the court “has not afforded the
Petitioner the opportunity to appear as a pro se litigant in
this action . . . and [he] reserves the right to bring such
inquisition as the Petitioner has not abandoned his
‘fair bite at the apple.'” ECF No. 39 at 3.
He requests the court vacate both the Magistrate Judge's
Report and the Order adopting the Report, so he can file
responses to both. Id.
filed a response in opposition arguing Petitioner is unable
to meet the requirements of Fed.R.Civ.P. 60(b). ECF No. 40.
They argue the pro se amendment to the response to summary
judgment was filed with the court on April 3 and 4, at Docket
No. 22-1 and 24. Id. at 1.
court disagrees it failed to afford Petitioner the
opportunity to appear as a pro se litigant. Petitioner argues
he “moved to proceed pro se to file his Amendment to
the Petitioner's Response in Opposition to the
Respondents' Motion for Summary Judgment that he prepared
for previous counsel to file on his behalf but counsel failed
to do for unknown reasons.” ECF No. 39 at 2. However,
this statement is contradicted by his own motion, which
stated counsel informed Petitioner she did not believe the
filing was in his best interest, and by the docket, which
reveals Petitioner never moved to file any
amendment. Regardless, the motion to withdraw as
counsel was filed nearly four months after Petitioner's
deadline to respond to Respondents' motion for summary
judgment, which would render any additional filing in
response to that motion untimely.
Petitioner had ample opportunity to file objections to the
Report. The docket reveals the Report was mailed to him the
day it was entered, and this court waited an extra week
beyond the deadline for objections to ensure Petitioner did
not submit objections that were held up in the mail or the
like. Petitioner does not argue he received the Report late
or any extraordinary circumstances that would justify the
lateness of his response via the instant
motion. While this court is sympathetic to pro se
litigants who do not file on time due to actions outside
their own control, the record reveals this is not such a
case. Petitioner did not have the right to file an untimely
response to Respondents' motion for summary judgment, and
had ample time to file objections to the Report, which could
have included the same information as his purported amendment
to the response to summary judgment. He failed to do so or to
raise the issue in any way before summary judgment was
entered for Respondents. For these reasons, Petitioner's
motion (ECF No. 39) is denied.
 A pro se amendment does not appear on
the docket. The document originally filed as ECF No. 22 was
deleted and replaced by ECF No. 23, a “document
provided by filing user.” See ECF No. 24. It is
possible the pro se amendment was filed as an attachment to
ECF No. 22 when it was initially filed; however, that filing
was removed and refiled with the document at ECF No. ...