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Gray v. Warden Broad River Correctional Institution

United States District Court, D. South Carolina, Greenville Division

October 28, 2019

Daryl Leon Gray, Petitioner,
v.
Warden Broad River Correctional Institution, Respondent.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald United States Magistrate Judge.

         The petitioner, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.

         On September 24, 2019, the respondent filed a motion for summary judgment and a return (docs. 16, 17). The respondent argues that the petitioner's Section 2254 petition should be dismissed as time-barred (doc. 16 at 9). By order filed September 24, 2019, pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975), the petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion (doc. 18). On October 15, 2019, the petitioner filed a response in support of the motion for summary judgment, stating, “I have read and agree with the motion to dismiss and I have no further response of disagreement with my time limitations and Bar of limitations” (doc. 23).

         The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Accordingly, the provisions of the AEDPA apply. Lindh v. Murphy, 521 U.S. 320, 336-37 (1997). The one-year time period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).[1] However, “[t]he time during which a properly filed application for State post-conviction or collateral relief with respect to the pertinent judgment or claim that is pending shall not be counted toward any period of limitation under this subsection.” Id. § 2244(d)(2). State collateral review tolls the one-year statute of limitations under Section 2244(d)(1)(A) for properly filed pleadings, Artuz v. Bennett, 531 U.S. 4, 8 (2000), but it does not establish a right to file within one year after completion of collateral review. Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000).

         In October 2010, the Anderson County Grand Jury indicted the petitioner for murder and possession of a weapon during the commission of a violent crime in a two-count indictment (app. 88-89). As set out in the respondent's memorandum, the petitioner pleaded guilty to voluntary manslaughter on April 16, 2012, and he was sentenced to 25 years of imprisonment (app. 18). He did not file a direct appeal. Accordingly, the statute of limitations began to run when the petitioner's convictions and sentence became final, which was on April 26, 2012, ten days after entry of his guilty plea. S.C. App. Ct. R. 203(b) (ten days to appeal before conviction becomes final in state court).

         The petitioner filed a PCR application on July 31, 2012, after the passage of 96 days of untolled time. This “properly filed application for State post-conviction relief” tolled the time for filing. 28 U.S.C. § 2244(d)(2). Using the date most favorable to the petitioner, the tolled period for the PCR action concluded on November 12, 2014, when the Anderson County Clerk of Court filed the remittitur in the PCR appeal (doc. 16-6). See Smith v. Warden of Perry Corr. Inst., C.A. No. 8:18-cv-2841-RMG, 2019 WL 1768322, at *2 (D.S.C. Apr. 22, 2019) (“The tolling period ends when the final state appellate decision affirming denial of the application is filed in the state circuit court.”) (citing Beatty v. Rawski, 97 F.Supp.3d 768, 780 (D.S.C. 2015) (finding that final disposition of a PCR appeal in South Carolina occurs when the remittitur is filed in the circuit court, and thus the statute of limitations is tolled until that time)). From that point on, the time to file for habeas relief lapsed without pause until the filing of the instant petition. The petition is considered filed on the date the envelope was stamped as received by prison mailroom authorities. Houston v. Lack, 487 U.S. 266 (1988). Only the mailed-on date, July 1, 2019, rather than the prison mailroom stamp, is visible from the envelope on file in this case (doc. 1-1 at 1). Accordingly, almost five years passed between the November 2014 conclusion of the petitioner's PCR appeal and the July 2019 habeas filing.

         Based upon the foregoing, the petition is untimely under the one-year statutory deadline set forth in the AEDPA. As set out above, the petitioner states as follows in his response to the motion for summary judgment, “I have read and agree with the motion to dismiss and I have no further response of disagreement with my time limitations and Bar of limitations” (doc. 23). Therefore, it is recommended that the respondent's motion for summary judgment (doc. 17) be granted and this action be dismissed.

         IT IS SO RECOMMENDED.

         Notice of Right to File Objections to Report and Recommendation

         The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n 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 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk United States District Court 300 East Washington Street Greenville, South Carolina 29601

         Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn,474 U.S. 140 (1985); Wright v. Collins,766 ...


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