Opinion
Civil Action 6:20-cv-3998-MGL-KFM
07-06-2021
Brandon Bannister, Petitioner, v. Warden Lieber Correctional Institution, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge.
The petitioner, a state prisoner proceeding pro se, brought this action seeking 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.
FAILURE TO PROSECUTE
On March 1, 2021, the respondent filed a return and motion for summary judgment (docs. 13, 14). By order of this court filed March 1, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the summary judgment procedure and the possible consequences if he failed to respond adequately (doc. 15). Despite this explanation, the petitioner did not respond to the motion.
As the petitioner is proceeding pro se, the court filed a second order on April 15, 2021, giving the petitioner until May 6, 2021, in which to file his response to the motion for summary judgment. The petitioner was specifically advised that if he failed to respond, this action would be dismissed for failure to prosecute. On May 7, 2021, the petitioner filed a motion for extension of time, stating that he "never received any letter concerning the matter prior to this letter that was sent out from" the Clerk of Court, which he received on April 19th (doc. 20). The undersigned granted the motion, extending the deadline for the petitioner's response until June 11, 2021 (doc. 21). The order granting the motion for extension of time was mailed to the petitioner on May 10, 2021 (doc. 22). On June 16, 2021, the order was returned as undeliverable with the envelope marked “Inmate refused his legal mail” (doc. 23).
A complaint may be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
Rule 12 of the Rules Governing Section 2254 Cases states: “The Federal Rules of Civil Procedure, to the extent they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”
(1) the degree of personal responsibility on the part of the plaintiff;
(2) the amount of prejudice to the defendant caused by the delay;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978) (citing McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)). These four factors “are not a rigid four-pronged test, ” and whether to dismiss depends on the particular circumstances of the case. Ballard, 882 F.2d at 95. For example, in Ballard, the court reasoned that “the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order” was an important factor supporting dismissal. Id. at 95-96 (citation omitted).
In the present case, the petitioner is proceeding pro se, and he is thus entirely responsible for his actions. It is solely through the petitioner's neglect, and not that of an attorney, that no response has been filed. Meanwhile, the respondent is left to wonder when the action will be resolved. The petitioner has not responded to the respondent's motion for summary judgment or the court's orders requiring him to respond. Accordingly, the undersigned concludes the petitioner has abandoned his lawsuit. No other reasonable sanctions are available. Accordingly, it is recommended that this action be dismissed for lack of prosecution pursuant to Rule 41(b).
MOTION FOR SUMMARY JUDGMENT
In the alternative, the undersigned recommends that the district court grant the respondent's motion for summary judgment (doc. 14) because the petition is untimely.
Procedural History
The petitioner is currently confined in the South Carolina Department of Corrections (“SCDC”) at Lieber Correctional Institution as the result of his Berkeley County convictions and sentence for burglary in the first degree and criminal sexual conduct in the first degree. The Berkeley County Grand Jury indicted the petitioner in April 2012 for burglary in the first degree (2012-GS-08-0587, app. 85-86) and criminal sexual conduct in the first degree (2012-GS-08-0588, app. 90-91). Keshia White, Esquire, represented the petitioner on these charges in the circuit court (app. 1). The petitioner pled guilty on May 20, 2013, before the Honorable J.C. Nicholson, Jr., and was sentenced to concurrent sentences of 25 years on the charges. Judge Nicholson also gave the petitioner credit for 795 days of time served (app. 2-29, 87, 92).
The petitioner did not appeal his conviction or sentence. On May 19, 2014, he filed a pro se post-conviction relief (“PCR”) application (2014-CP-08-1153) (app. 31 -38).The Honorable Jean H. Toal held an evidentiary hearing into the matter on September 16, 2016, at the Berkeley County Courthouse. Judge Toal denied relief and dismissed the application with prejudice in an order of dismissal filed on November 9, 2017 (app. 75-84).
The petitioner was represented by Lance S. Boozer, Esquire, in the PCR proceedings (app. 44-45).
The petitioner timely served and filed a notice of appeal on November 17, 2017 (doc. 13-2). On November 8, 2019, the South Carolina Court of Appeals filed an order denying certiorari and granting counsel's request to withdraw (doc. 13-4). The court sent the remittitur to the Berkeley County Clerk of Court on November 26, 2019 (doc. 13-5). The Berkeley County Clerk of Court filed the remittitur on December 2, 2019 (doc. 13-6).
Assistant Appellate Defender LaNelle Cantey DuRant represented the petitioner in collateral appellate proceedings (doc. 13-3).
On November 13, 2020, the petitioner filed his petition for writ of habeas corpus in this court (docs. 1, 1-1). See Houston v. Lack, 487 U.S. 266 (1988) (providing a prisoner's document is deemed filed at the moment of delivery to prison authorities for forwarding to the district court).
Summary Judgment Standard
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
Timeliness
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 respondent first argues that the petition is untimely under the one-year statutory deadline set forth in the AEDPA (doc. 13 at 8-14). This court agrees. 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. 2000).
As this court recommends that the petition be dismissed as untimely, the respondent's remaining arguments will not be addressed.
The statute provides other possible start dates for the one-year time period that are not relevant here. See 28 U.S.C. § 2244(d)(1)(B)-(D).
The petitioner pled guilty and was sentenced on May 20, 2013, and he did not file a direct appeal from his guilty plea. Thus, the petitioner's conviction became final on May 30, 2013. See Rule 203, SCACR (“After a plea or trial resulting in conviction . . ., a notice of appeal shall be served on all respondents within ten (10) days after the sentence is imposed.”). See also 28 U.S.C. § 2244(d)(1)(A) (establishing that one-year runs from “the date on which the judgment became final by the conclusion of direct review of the expiration of the time for seeking such review”); Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) (“We hold that, for a state prisoner who does not seek review in a State's highest court, the judgment becomes ‘final' on the date that the time for seeking such review expires.”).
The petitioner's time period for filing his federal habeas petition ran from May 31, 2013, until he filed his PCR application on May 19, 2014 (app. 31-38). At that point, 353 days of untolled time had elapsed. The petitioner's time limit remained tolled until his PCR appeal concluded. Using the date most favorable to the petitioner, the tolled period for the PCR action concluded on December 2, 2019, when the Berkeley County Clerk of Court filed the remittitur in the PCR appeal (doc. 13-6). 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)).
On November 13, 2020, the petitioner delivered his federal habeas petition to prison authorities for filing in this court (docs. 1, 1-1). See Houston, 487 U.S. 266 (providing a prisoner's document is deemed filed at the moment of delivery to prison authorities for forwarding to the district court). This was 347 days after his PCR proceedings concluded. When combined with the 353 days of untolled time that elapsed prior to the petitioner filing his PCR application, the petitioner's federal habeas petition was filed some 700 days after his state court convictions became final and eleven months after the statute of limitations expired. As such, his petition is untimely.
Equitable Tolling
To avoid application of Section 2244(d) regarding the timeliness of the instant federal habeas petition, the petitioner must show that the one-year limitations period should be equitably tolled under applicable federal law. See Holland v. Florida, 560 U.S. 631 (2010) (concluding that § 2244(d) is subject to the principles of equitable tolling); Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000) (same). “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citation omitted); see also Holland, 560 U.S. at 649. Equitable tolling is available only in “those rare instances where-due to circumstances external to the party's own conduct-it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Harris, 209 F.3d at 330. See also United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). The Fourth Circuit is clear that equitable tolling is only appropriate where a petitioner shows: “(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time.” Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc).
The petitioner did not address the timeliness of his petition in the petition itself, and, as noted, he did not file a response to the motion for summary judgment (see doc. 1 at 14-15). He has failed to articulate or show that he has been pursuing his rights diligently and that some extraordinary circumstance stood in his way and prevented timely filing of his federal petition. Nor has the petitioner offered any other reason that he can overcome the untimeliness of his petition. Accordingly, the undersigned recommends that the district court find that the petitioner is not entitled to equitable tolling and that the petition is, therefore, time-barred.
CONCLUSION AND RECOMMENDATION
For the foregoing reasons, the undersigned recommends that this action be dismissed with prejudice for failure to prosecute pursuant to Rule 41(b). Alternatively, the respondent's motion for summary judgment (doc. 14) should be granted as the petition is barred by the statute of limitations.
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 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).