Opinion
C/A No. 0:20-173-MGL-PJG
09-29-2020
Jeron Alondo Cook, Petitioner, v. Warden Kenneth Nelsen, Respondent.
REPORT AND RECOMMENDATION
Petitioner Jeron Alondo Cook, a self-represented state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the respondent's motion for summary judgment. (ECF No. 33.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised the petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the respondent's motion. (ECF No. 34.) Cook filed a response in opposition (ECF No. 41), and the respondent replied (ECF No. 43). Having carefully considered the parties' submissions and the record in this case, the court finds that Cook's Petition is barred by 28 U.S.C. § 2244(d) as untimely.
BACKGROUND
Cook was indicted in 2010 in Sumter County for assault and battery with intent to kill, murder, burglary in the first degree, possession of a firearm during commission of a violent crime, and unlawful carrying of a handgun. (App. at 656, ECF No. 32-2 at 158.) Cook was represented by Ernest "Chip" Finney, III, Esquire, and on April 19-21, 2010 was tried before a jury and found guilty of possession of a firearm during commission of a violent crime, unlawful carrying of a handgun, and voluntary manslaughter. (App. at 405, ECF No. 32-1 at 407.) The circuit court sentenced Cook to five years' imprisonment for unlawful carrying of a pistol, five years' imprisonment for possession of a firearm, both sentences to run concurrently, and a consecutive sentence of twenty years' imprisonment for voluntary manslaughter. (App. at 420-21, ECF No. 32-1 at 422-23.)
Cook timely appealed and was represented by Breen Richard Stevens, Esquire, who filed an Anders brief on Cook's behalf. (App. at 442-53, ECF No. 32-1 at 444-55.) On September 4, 2013, the South Carolina Court of Appeals dismissed Cook's appeal. (App. at 457-58, ECF No. 32-1 at 459-50.) The remittitur was issued on September 20, 2013. (App. at 459, ECF No. 32-1 at 451.)
Anders v. California, 386 U.S. 738 (1967), requires that counsel who seeks to withdraw after finding the "case to be wholly frivolous" following a "conscientious examination" must submit a brief referencing anything in the record that arguably could support an appeal; furnish a copy of that brief to the defendant; and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited. Anders, 386 U.S. at 744.
Cook filed a pro se application for post-conviction relief ("PCR") on April 3, 2014. (Cook v. State of South Carolina, 2014-CP-43-644, App. at 472-77, ECF No. 32-1 at 474-79.) On April 13, 2015, the PCR court held an evidentiary hearing at which Cook testified and was represented by Tricia A. Blanchette, Esquire. (App. at 487-627, ECF No. 32-1 at 489 through ECF No. 32-2 at 129.) Following the hearing, Cook submitted an amended PCR application. (ECF No. 32-3 at 3-4.) By order issued December 27, 2016, the PCR court dismissed Cook's PCR application with prejudice. (App. at 639-50, ECF No. 32-2 at 141-52.) Counsel for Cook filed a Rule 59(e) motion on January 18, 2017, which was denied by the PCR court on February 7, 2017. (App. at 651-53, 655, ECF No. 32-2 at 153-55, 157.)
Cook also previously filed a PCR application on March 21, 2013 during the pendency of his direct appeal, but the circuit court granted the State's motion to dismiss that application without prejudice by order issued August 8, 2013. (Cook v. State of South Carolina, 2013-CP-43-522, App. at 460-65, ECF No. 32-1 at 462-67; Order of Dismissal, App. at 470-71, ECF No. 32-1 at 472-73.)
Counsel for Cook, Susan B. Hackett, Esquire, Appellate Defender for the South Carolina Commissioner on Indigent Defense, filed a petition for a writ of certiorari on January 22, 2018. (ECF No. 32-4.) On March 1, 2019, the South Carolina Court of Appeals issued an order denying Cook's petition for a writ of certiorari. (ECF No. 32-7.) The remittitur was issued March 19, 2019 and filed with the Sumter County Clerk of Court on March 22, 2019. (ECF No. 32-8.)
Cook's instant Petition for a writ of habeas corpus was filed January 16, 2020. (ECF No. 1.)
FEDERAL HABEAS ISSUES
Cook's federal Petition for a writ of certiorari raises the following issues, quoted verbatim:
Ground One: The trial court reversibly erred by permitting Appellant's drug and firearm convictions to be used for impeachment pursuant to Rule 609, SCRE, where the court failed to fully articulate its rationale on the record under the five-factor balancing test. All in which violated the fifth and fourteenth Amendment of the United States Constitution.(Pet., ECF No. 1-1.)
Ground Two: Trial counsel labored under a conflict of interest while representing Petitioner in this criminal matter while running for Solicitor in the same Circuit because his desire to be elected Solicitor was inherently conducive to divided loyalties, which violated sixth and fifth amendment right to U.S. Constitution.
Ground Three: Trial counsel provided ineffective assistance in derogation of the Sixth and Fourteenth Amendment to the United States Constitution by failing to object to the trial judge repeatedly instructing the jury to "search for the truth" and "reach a fair and just verdict" where the instructions deprived Petitioner of his right to a fair [trial] by improperly shifting the state's burden of proof and creating a reasonable likelihood the jurors substituted the trial court's repeated concept of determining the truth for the state's burden to prove guilt beyond a reasonable doubt.
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly 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. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Statute of Limitations
The respondent argues that Cook's Petition is untimely under the one-year statutory deadline set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The one-year time period runs from the latest of "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); see Gonzalez v. Thaler, 565 U.S. 134 (2012). Because Cook filed a direct appeal, his conviction became final on December 3, 2013—the expiration of the time in which Cook could have timely filed a petition for a writ of certiorari with the United States Supreme Court. See Gonzalez, 565 U.S. at 150; 28 U.S.C. § 1257 ("Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari . . . ."); U.S. Sup. Ct. R. 10(b) (stating that certiorari is considered where "state court of last resort" has decided an important federal question); U.S. Sup. Ct. R. 13 (stating that the time period for a petition for a writ of certiorari is 90 days from the decision or judgment of a state court of last resort); State v. Lyles, 673 S.E.2d 811, 812 (S.C. 2009) (holding that the South Carolina Supreme Court would no longer consider petitions for writs of certiorari where the South Carolina Court of Appeals dismissed the petitioner's direct appeal after Anders review). Accordingly, the limitations period began to run on December 4, 2013, and expired December 3, 2014, unless the period was at any time tolled for any properly filed state PCR application. 28 U.S.C. § 2244(d)(2); see also Hernandez v. Caldwell, 225 F.3d 435, 438-39 (4th Cir. 2000) (applying the anniversary date method in calculating the one-year limitation period in § 2244 and concluding that "the actual count on the limitations period began on April 25, 1996, and ended on April 24, 1997, excluding any time tolled").
Cook filed his state PCR application on April 3, 2014. At that point, 120 days of non-tolled time had accrued since the period of limitations began to run. The period of limitations was tolled during the pendency of the PCR action until March 19, 2019, when the South Carolina Court of Appeals issued the remittitur from its order denying Cook's petition for a writ of certiorari. Accordingly, Cook had until November 20, 2019 to file a timely federal habeas petition.
The court has used the date that the remittitur was issued. See Gonzalez, 132 S. Ct. at 654 n.10 (distinguishing between the provisions of § 2244(d)(2) and (d)(1)); see also Rule 221(b), SCACR. However, out of an abundance of caution, even considering the date that the remittitur was filed with the Sumter County Clerk's office, Cook's Petition was still untimely filed. See Beatty v. Rawski, 97 F. Supp. 3d 768, 772-76 (D.S.C. 2015) (tolling the statutory deadline until the remittitur is filed in the county clerk's office).
Cook's federal Petition was filed on January 16, 2020—over a month and a half after the expiration of the statute of limitations.
C. Cook's Arguments
Cook objects and responds in opposition to the respondent's motion for summary judgment. (Petr.'s Resp. Opp'n Summ. J., ECF No. 41.) First, he vaguely alleges that the mailroom delayed filing his Petition. Additionally, he appears to argue that he is entitled to equitable tolling due to riots at Lee Correctional Institution ("LCI"), lock downs at the South Carolina Department of Corrections ("SCDC") prisons, lack of access to the law library, and the COVID-19 pandemic that he argues all demonstrate "hardship."
Cook also argues that he did not receive the Roseboro Order issued by the court. Review of the docket shows that the court's order was mailed to Cook at his address of record on file with the court at the time of its issuance. (ECF Nos. 34 & 35.) Cook apparently was transferred to a different SCDC institution, yet he failed to keep the court apprised of his current address in accordance with the instructions issued multiple times earlier in his case by the court. (ECF Nos. 4 & 11.) Only when Cook mailed his response in opposition to summary judgment that contained a new return address on the envelope was the court informed of his transfer and new address.
To avoid application of the statute of limitations to the instant federal habeas corpus Petition, Cook 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); 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." Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003) (en banc) (internal quotation marks and citation omitted); see also United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). Thus, to be entitled to equitable tolling, an otherwise time-barred petitioner must present: "(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time." Rouse, 339 F.3d at 246.
Cook has not established grounds for equitable tolling and has failed to show that he has been diligently pursuing his rights. See Harris, 209 F.3d at 330 ("Under long-established principles, petitioner's lack of diligence precludes equity's operation."); Pace, 544 U.S. at 419 (denying equitable tolling to a habeas petitioner who waited years to file his PCR petition and months after his PCR trial to seek relief in federal court). Cook alludes to the prison mailroom causing his Petition to be delayed in being filed and makes a statement in his unsigned, undeclared Petition that he placed the Petition in the mail on July 14, 2019 at Lee Correctional Institution. However, even if the court were to assume without deciding that Cook's allegation is true, the respondent points out that Cook was transferred to Wateree River Correctional Institution ("WRCI") on November 5, 2019, yet Cook did not file his Petition until January 16, 2020. Cook has not alleged, nor has he forecast evidence to show, that the WRCI mailroom interfered with or delayed in any way Cook filing his Petition. Accordingly, Cook has failed to show that he has been diligently pursuing his rights in that he waited almost two months after his transfer to a new facility to file his federal habeas petition. See Harris, 209 F.3d at 330 ("Under long-established principles, petitioner's lack of diligence precludes equity's operation.").
Cook also purports to argues that the riot at LCI, various lock downs at the prisons, his lack of access to the law library, and the COVID-19 pandemic caused him "hardship" such that he should be entitled to equitable tolling. However, as noted by the respondent, the riot at LCI occurred almost a year prior to the conclusion of Cook's PCR litigation on March 19, 2019. As discussed above, at the conclusion of his PCR litigation, Cook still had approximately eight months in which to file his federal habeas petition, yet failed to do so. Moreover, any "hardship" as a result of the COVID-19 pandemic would not apply to Cook's federal petition that was filed in January 2020, as this was well before any limitations or restrictions at SCDC institutions due to COVID-19 were put in place. The record is clear that Cook waited almost ten months after the conclusion of his PCR litigation to file his federal habeas petition. Accordingly, this court cannot say that Cook has been pursuing his rights diligently. See id.; see also also Pace, 544 U.S. at 419 (denying equitable tolling to a habeas petitioner who waited years to file his PCR petition and months after his PCR trial to seek relief in federal court). Additionally, Cook's lack of access to the law library or any ignorance of the statute of limitations deadlines (although not argued by Cook) does not avail him, as it is well recognized that these factors do not warrant equitable tolling. See Cross-Bey v. Gammon, 322 F.3d 1012, 1015 (8th Cir. 2003) (rejecting equitable tolling where a petitioner alleged lack of legal knowledge or legal resources); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) ("[I]t is well established that ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.") (internal quotation marks & citations omitted); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) ("Owens is young, has a limited education, and knows little about the law. If these considerations delay the period of limitations until the prisoner has spent a few years in the institution's law library, however, then § 2244(d)(1) might as well not exist; few prisoners are lawyers."); Jones v. South Carolina, C/A No. 4:05-2424-CMC-TER, 2006 WL 1876543, at *3 (D.S.C. June 30, 2006) ("Other courts addressing equitable tolling have found that 'extraordinary circumstances' are not: having an inadequate law library, . . . claims of actual innocence, reliance on other inmates' advice, ignorance of the AEDPA filing deadline, or even (in some instances) petitioner illness."). Moreover, institutional transfers and lockdowns do not generally qualify as extraordinary circumstances sufficient to warrant equitable tolling. See, e.g., Smalls v. Nelson, C/A No. 2:19-2669-SAL-MGB, 2020 WL 1930636, at *7 (D.S.C. Mar. 23, 2020) (Report and Recommendation), adopted by 2020 WL 1922831 (D.S.C. Apr. 20, 2020); Grant v. Bush, C/A No. 6:14-01313-DCN, 2015 WL 4747104, at *8 (D.S.C. Aug. 11, 2015).
In summary, for the reasons stated above, Cook cannot show that he has been pursuing his rights diligently or that some extraordinary circumstance stood in his way such that he is entitled to equitably toll the one-year statute of limitations. Rouse, 339 F.3d at 246.
RECOMMENDATION
Based upon the foregoing, the court finds that Cook's Petition was not timely filed and is therefore barred by the applicable statute of limitations. Accordingly, the court recommends that the respondent's motion for summary judgment (ECF No. 33) be granted and Cook's Petition denied as untimely. In light of the court's recommendation, Cook's motion for a bond hearing should be denied. (ECF No. 23.) September 29, 2020
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
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
901 Richland Street
Columbia, South Carolina 29201
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).