Opinion
8:24-cv-3879-BHH-BM
07-12-2024
Wilbert Evans Brown, Jr. Petitioner, v. Warden Martell, Respondent,
REPORT AND RECOMMENDATION
Bristow Marchant, United States Magistrate Judge
Wilbert Evans Brown, Jr. (“Petitioner”), proceeding pro se and in forma pauperis, brings this action seeking a petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is presently confined at the MacDougall Correctional Institution. ECF No. 1 at 1. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B), D.S.C., the undersigned United States Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Judge. For the reasons below, this action is subject to summary dismissal.
BACKGROUND
Allegations from the Petition
Petitioner commenced this action by filing a petition on the standard court form seeking relief pursuant to 28 U.S.C. § 2254, ECF No. 1, and a separate document with allegations of fact supporting his grounds for relief, ECF No. 1-1 at 1-4. The Court construes both of these documents together as the “Petition” filed in this matter. Petitioner also attached copies of certain state court records to his Petition. ECF No. 1-1 at 5-15.
Petitioner alleges he was convicted and sentenced on November 26, 2018, after pleading guilty to the crimes of felony driving under the influence (“DUI”) resulting in death and felony DUI resulting in great bodily injury in the Florence County Court of General Sessions. ECF No. 1 at 2. Petitioner was sentenced to two 15-year concurrent terms of imprisonment. Id.
Petitioner asserts the following grounds for relief in his Petition, which are provided substantially verbatim (with slight alterations to correct spelling and some grammar):
GROUND ONE: Violation of Fourteenth (14th) Amendment Due Process, denied fundamental fairness.
GROUND TWO: Violation of Sixth and Fourteenth Amendment, for ineffective assistance of counsel.
GROUND THREE: Violation of Petitioner's Sixth and Fourteenth Amendment guaranteed effective assistance of counsel.
GROUND FOUR: Violation of Sixth and Fourteenth Amendments, Petitioner's right to effective counsel.ECF No. 6-11.
Petitioner filed a post-conviction relief (“PCR”) application in the Florence County Court of Common Pleas, which was “[d]ismissed pursuant [to] Statute of Limitations.” Id. at 4. Petitioner appealed to the South Carolina Supreme Court, which dismissed the appeal. Id. at 5.
State Court Procedural History
By further way of background, the undersigned notes the following procedural history from Petitioner's state court cases relevant to the Petition filed in this case.
The Court takes judicial notice of Petitioner's state court actions including the original criminal proceedings, his applications for post-conviction relief, and his appeals from those actions. See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
Conviction, Sentence, and Direct Appeal
Petitioner was indicted in the Florence County Court of General Sessions at indictment number 2017-GS-21-00695 after being charged with felony DUI resulting in death at case number 2017A2110100041 and felony DUI resulting in great bodily injury at case number 2017A2110100042. See State of South Carolina v. Wilbert Evans Brown, Jr., Nos. 2017A2110100041 and 2017A2110100042, available at Florence County Twelfth Judicial Circuit Public Index, https://publicindex.sccourts.org/Florence/PublicIndex/PISearch.aspx (search by case numbers “2017A2110100041” and “2017A2110100042”) (last visited July 12, 2024). Petitioner plead guilty to both counts on November 26, 2018, and was sentenced to a term of imprisonment of 15 years on both counts that same day. Id. Petitioner did not file a direct appeal.
Post-Conviction Relief
On March 20, 2020, Petitioner filed a PCR application in the Florence County Court of Common Pleas at case number 2020-CP-21-00880. See Brown v. State of South Carolina, No. 2020-CP-21-00880 (“Brown PCR Action”), available at Florence County Twelfth Judicial Circuit Public Index, https://publicindex.sccourts.org/Florence/PublicIndex/PISearch.aspx (search by case number “2020CP2100880”) (last visited July 12, 2024). On April 14, 2023, the PCR court entered an order of dismissal denying and dismissing the PCR application. Id.
Petitioner then filed a notice of appeal. See Brown v. State, No. 2023-000862, available at https://ctrack.sccourts.org/public/caseSearch.do (search by Appellate Case No. “2023-000862”) (last visited July 12, 2024). On August 10, 2023, the Supreme Court of South Carolina dismissed the petition for a writ of certiorari. Id. A remittitur was issued by the Supreme Court on August 28, 2023, and entered on the PCR court docket on May 19, 2021. Id.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in the above-captioned case. The review was conducted pursuant to the procedural provisions of 28 U.S.C. § 1915, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. 104-132, 110 Stat. 1214, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Further, this Court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts (2012). Pursuant to this rule, a district court is “authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994).
Because Petitioner is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However, even under this less stringent standard, the Petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
DISCUSSION
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Under § 2254, a federal court may issue a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
However, habeas actions are subject to a statute of limitations. This action is subject to summary dismissal because the Petition is untimely under the applicable statute of limitations.Under the AEDPA, a petitioner has one year to file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1) (“A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.”). The statute tolls the limitations period during the time “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2).
A federal court may raise the issue of the timeliness of a habeas petition sua sponte. Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002). As the Fourth Circuit has noted,
A district court has the discretion, but not the obligation, to consider on its own motion the timeliness of a habeas petition under AEDPA if (1) the parties have fair notice and an opportunity to be heard; (2) the state has not waived the limitations defense; (3) the “petitioner is not significantly prejudiced by the delayed focus on the limitation issue”; and (4) the court “determine[s] whether the interests of justice would be better served by addressing the merits or by dismissing the petition as time barred.”Gray v. Branker, 529 F.3d 220, 241 (4th Cir. 2008) (alteration in original) (quoting Day v. McDonough, 547 U.S. 198, 209-11 (2006)). Once a court has raised the issue, it “must accord the parties fair notice and an opportunity to present their positions” on the issue. Day, 547 U.S. at 210. Petitioner's right to file objections to this Report and Recommendation constitutes his opportunity to object to a dismissal of his Petition based on the statute of limitations. See Hill, 277 F.3d at 707; Bilal v. North Carolina, 287 Fed.Appx. 241, 248-49 (4th Cir. 2008).
The statute of limitations is tolled for the entire period of the state post-conviction process, “from initial filing to final disposition by the highest state court (whether decision on the merits, denial of certiorari, or expiration of the period of time to seek further appellate review).” Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999). However, “[f]ollowing the denial of relief in the state courts in state habeas proceedings, neither the time for filing a petition for certiorari in the United States Supreme Court, nor the time a petition for certiorari is considered by the United States Supreme Court, is tolled.” Crawley v. Catoe, 257 F.3d 395, 399 (4th Cir. 2001).
Although the limitations period is tolled during the pendency of a properly filed collateral attack on the subject conviction, the one-year statute of limitations begins to run on the date a petitioner's conviction becomes final, not at the end of collateral review. Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000); see also Myers v. Warden of McCormick Corr. Inst., No. 1:11-cv-450-TLW-SVH, 2011 WL 7143471, at *8 (D.S.C. Nov. 28, 2011) (evaluating when a conviction becomes final under South Carolina law), Report and Recommendation adopted by 2012 WL 359733 (D.S.C. Feb. 2, 2012). In South Carolina, if a defendant files a direct appeal and his conviction is affirmed, the conviction becomes final 90 days after the final ruling of the South Carolina Supreme Court. See Myers, 2011 WL 7143471, at * 8. On the other hand, if a defendant does not file a direct appeal, as in the present case, the conviction becomes final 10 days after the adjudication of guilt. See Fleming v. South Carolina, No. 3:07-cv-3797-JFA-JRM, 2008 WL 5450273, at *4 (D.S.C. Dec. 31, 2008).
Here, it appears from the face of the Petition and the publicly available state court records that the action is time barred. As noted, Petitioner was convicted on November 26, 2018, and sentenced that same day. ECF No. 1 at 1. Because Petitioner did not file a direct appeal, his conviction became final on December 6, 2018, 10 days after he was sentenced. See Rule 203(b)(2), SCACR; Mack v. Warden, Trenton Corr. Inst., No. 4:16-cv-838-HMH-TER, 2016 WL 4761613, at *2 (D.S.C. Sept. 13, 2016). Thus, the AEDPA's one-year statute of limitations began to run on that date and would expire on December 6, 2019, unless the time were tolled. Although Petitioner filed a PCR application in the Florence County Court of Common Pleas on March 20, 2020, when he filed his PCR application, the limitations period under AEDPA applicable to the present Petition had already expired on December 6, 2019. Indeed, the PCR court found that Petitioner's PCR action was time barred under the applicable state court statute of limitations. As such, Petitioner's state court PCR action did not toll the limitations period under AEDPA because it had already expired. See Sanders v. Warden of Allendale Corr. Inst., No. 2:17-cv-01819-HMH-MGB, 2018 WL 4090627, at *4 (D.S.C. Aug. 28, 2018) (noting that “AEDPA provides that only a ‘properly filed' PCR action tolls the statute of limitations” once a conviction becomes final).
The South Carolina Uniform Post-Conviction Procedure Act contains a similar one-year statute of limitations to the one applicable in this Court under AEDPA. See S.C. Code § 17-27-10, et seq.
Moreover, Petitioner did not file the instant habeas action, at the earliest, until June 27, 2024. As such, Petitioner filed the instant Petition nearly four and a half years after the expiration of the statute of limitations. Accordingly, the undersigned concludes based on the face of the pleadings that Petitioner's § 2254 Petition is barred by the applicable one-year limitations period. Because the Petition is time-barred, it should be dismissed. The undersigned further finds that the interests of justice would not be better served by addressing the merits of the Petition.
Ordinarily, a prisoner's pleading is deemed filed at the moment it is delivered to prison authorities for forwarding to the District Court. See Houston v Lack, 487 U.S. 266, 270-76 (1988). Here, neither the pleadings nor the envelope containing them are stamped with a date as having been received by the prison mail room. As such, because it appears that Petitioner did not rely on prison authorities to mail his Petition, the Houston v. Lack filing rule would not apply. See, e.g., Cook v. United States, No. 0:11-cv-320-RMG-PJG, 2012 WL 384887, at *2 n.3 (D.S.C. Jan. 6, 2012) (noting the Houston v. Lack protections do not apply where an inmate does not use the prison mail room to send his pleadings to the clerk of court), Report and Recommendation adopted by 2012 WL 384935 (D.S.C. Feb. 6, 2012), aff'd, 530 Fed.Appx. 217 (4th Cir. 2013). The envelope containing the pleadings was postmarked June 27, 2024. ECF No. 1-2 at 1. Out of an abundance of caution, the Court will use that date as the date of filing.
Finally, Petitioner appears to assert that he is entitled to tolling of the statute of limitations. ECF No. 1 at 14-15. Specifically, Petitioner contends that he was unable to pursue an appeal and/or collateral attack on his conviction in a timely manner “[b]ased on the fact this was the [e]ra of the Covid-19 pandemic.” Id. Petitioner notes that “President Trump declared a National Emergency” and that he was unable to access the law library due to pandemic-related lockdowns. Id.
Nevertheless, Petitioner has not articulated a valid basis upon which the Court should toll the applicable statute of limitations. “To establish grounds for equitable tolling, a petitioner must show (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Justus v. Clarke, 78 F.4th 97 (4th Cir. 2023) (internal quotation marks omitted). As explained above, Petitioner had one year after the judgment of conviction became final to file the instant action. Nothing in the record establishes that Petitioner pursued his rights diligently between December 6, 2018, when his conviction became final, and December 6, 2019, when the limitations period expired. Petitioner's argument that he was hindered from pursuing review of his conviction and sentence due to the coronavirus pandemic is without merit as his conviction became final and the limitations period expired before the coronavirus pandemic started and before any lockdowns were implemented. Accordingly, Petitioner has not articulated any basis for the Court to equitably toll the statute of limitations.
RECOMMENDATION
Accordingly, it is recommended that this action be dismissed without requiring the Respondent to file an answer or return.
IT IS SO RECOMMENDED.