United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
F. McDonald United States Magistrate Judge.
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.
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).
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). 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.
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).
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.
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.
of Right to File Objections to Report and
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
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
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.