United States District Court, D. South Carolina, Florence Division
Dennis F. Sanders, Petitioner,
Warden Williams, Respondent.
ORDER AND OPINION
Dennis F. Sanders, proceeding pro se and in
forma pauperis, filed for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 (“Habeas Petition”).
(ECF No. 1.) The matter before the court is a review of the
Magistrate Judge's Report and Recommendation
(“Report”). (ECF No. 16.) For the reasons below,
the court ACCEPTS the Magistrate Judge's
Report (ECF No. 16) and DISMISSES Petitioner
Dennis F. Sanders' Habeas Petition (ECF No. 1).
FACTUAL AND PROCEDURAL BACKGROUND
September 1, 2011, Petitioner pled guilty to charges for
trafficking methamphetamine. (ECF No. 1 at 1-2).
Petitioner's conviction became final on September 11,
2011 when Petitioner did not seek further direct review. (ECF
No. 16 at 1.) On May 23, 2012, Petitioner filed his PCR in
the lower court. (Id.) He appealed the PCR decision,
and on October 31, 2017, remittitur was filed. (Id.
at 1-2.) Petitioner filed a Habeas Petition on October 24,
2018. (ECF No. 1.) The Magistrate Judge issued the Report on
January 8, 2019, recommending dismissal because the Habeas
Petition is time-barred. (ECF No. 16.) The Magistrate Judge
determined that the “delivery date” of the Habeas
Petition is September 11, 2018. (ECF No. 16 at 4 (citing
Houston v. Lack, 487 U.S. 266, 270-76 (1988)
(prisoner's pleading was filed at moment of delivery to
prison authorities for forwarding to District Court)).) The
court observes that the Report provides the following periods
of “untolled” time:
September 11, 2011 (liberally construed, the date upon which
Petitioner's conviction became final, SCACR Rule 203) to
May 23, 2012 (the filing date of Petitioner's first state
PCR action) (255 days)
October 31, 2017 (liberally construed, the date the lower
court received the remittitur on Petitioner's PCR
action)2 to September 11, 2018 (the Houston v. Lack
delivery date of the instant Petition) (315 days)
(ECF No. 16 at 4.) Stated differently, the Magistrate Judge
concluded that “the Petitioner has over [five-hundred]
(500) days of untolled time. This aggregate time period
exceeds the one-year statute of limitations of 28 U.S.C.
§ 2244(d). (ECF No. 16 at 5 (citing Harris v.
Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000).
Petitioner filed timely objections to the Report on February
21, 2019. (ECF No. 19.)
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge only makes a
recommendation to this court, and the recommendation has no
presumptive weight. See Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The responsibility to make a final
determination remains with the court. Id. at 271. As
such, the court is charged with making de novo
determinations of those portions of the Report to which
specific objections are made. See 28 U.S.C. §
636(b)(1); See also Fed. R. Civ. P. 72(b)(3). In the
absence of specific objections to the Magistrate Judge's
Report, the court is not required to give any explanation for
adopting the Report. See Camby v. Davis, 718 F.2d
198, 199 (4th Cir. 1983). Rather, “in the absence of a
timely filed objection, 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 & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
committee's note). Thus, the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge's
recommendation or recommit the matter with instructions. 28
U.S.C. § 636(b)(1).
court is required to interpret pro se documents
liberally and will hold those documents to a less stringent
standard than those drafted by attorneys. See Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). See also
Hardin v. United States, C/A No. 7:12-cv-0118-GRA, 2012
WL 3945314, at *1 (D.S.C. Sept. 10, 2012). Additionally,
pro se documents must be construed in a favorable
manner, “no matter how inartfully pleaded, to see
whether they could provide a basis for relief.”
Garrett v. Elko, No. 95-7939, 1997 WL 457667, at *1
(4th Cir. Aug. 12, 1997). Although pro se documents
are liberally construed by federal courts, “[t]he
‘special judicial solicitude' with which a district
court should view pro se complaints does not
transform the court into an advocate.” Weller v.
Dep't of Soc. Servs. for Balt., 901 F.2d 387, 391
(4th Cir. 1990).
“objects to [the Habeas Petition] being dismiss[ed] on
the grounds of Ineffective Assistance of trial
counsel.” (ECF No. 19 at 3.) Specifically, Petitioner
counsel did not file [a] timely appeal before September 11,
2011 . . . fail[ed] to advise Petitioner of the one-year
statute of limitations to file [Post-Conviction Relief] and
[a Habeas Petition] . . . [and] also failed to explain to
Petitioner that the one-year period does not run, i.e.,
‘is tolled' during the time period that a direct
appeal and a Post-Conviction Relief application are pending.
(Id. at 4-5.) Petitioner also filed a letter stating
that “his appellate defense attorneys told him he had
one year from the ‘decision from my Appeals to file my