Opinion
C. A. 6:22-cv-1378-JFA-KFM
07-26-2022
Kenneth J. Craig, Petitioner, v. Warden Kendall, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2254 for habeas relief. 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.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons set forth below, it is recommended that the petitioner's § 2254 petition be summarily dismissed.
ALLEGATIONS
Petitioner's Convictions and Sentence
Following a trial by jury in the Spartanburg County General Sessions Court, the petitioner was found guilty of eleven counts of attempted armed robbery, two counts of armed robbery, and one count of possession of a firearm during the commission of a violent crime on July 25, 2013. See Spartanburg County Public Index, https://publicindex. sccourts.org/Spartanburg/PublicIndex/PISearch.aspx (enter the petitioner's name and 2013GS4202844, 2013GS4202845, 2013GS4202846, 2013GS4202847, 2013GS4202848, 2013GS4202849, 2013GS4202850, 2013GS4202851,2013GS4202852, 2013GS4202853, 2013GS4202854, 2013GS4202855, M757599, M757600) (last visited July 25, 2022). The petitioner was sentenced to twenty-year concurrent sentences for armed robbery (with the first armed robbery sentence running consecutive to the attempted armed robbery sentences), ten-year concurrent sentences for attempted armed robbery, and a five-year concurrent sentence for possession of a weapon during the commission of a violent crime. Id. The petitioner appealed, and the Court of Appeals of South Carolina affirmed his convictions and sentence. See State of S.C. v. Craig, C/A No. 2013-001690, 2014 WL 6721434 (S.C. Ct. App. Nov. 26, 2014).
The court takes judicial notice of the records in the petitioner's criminal case in the Spartanburg County General Sessions Court, as well as the petitioner's post-conviction relief actions in the Spartanburg County Court of Common Pleas and a prior action in this court brought pursuant to § 2254. See Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (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.'”).
Petitioner's First Collateral Attack in State Court
The petitioner filed his first post-conviction relief (“PCR”) action in the Spartanburg County Court of Common Pleas on March 6, 2015. See Spartanburg County Public Index (enter the petitioner's name and 2015-CP-42-00937) (last visited July 25, 2022). In his PCR application, the petitioner asserted several grounds for relief, including ineffective assistance of counsel (“IAC”) for failing to object to an invalid warrant, failing to instruct the jury on a lesser included offense of strong armed robbery, failing to argue that the state failed to produce a weapon at trial, failing to request a photo lineup, failing to utilize a gunshot residue expert, and failing to file a motion to suppress. Id. The petitioner also asserted Sixth and Fourteenth Amendment due process violations and a conflict of interest claim because the judge who signed the arrest warrant was related to the victim/witness. Id. The PCR application was denied on the merits on June 16, 2017. Id. The petitioner appealed, and his request for a writ of certiorari was denied on January 15, 2019. Craig v. State of S.C., C/A No. 2017-001616 (S.C.) (remittitur entered in the Spartanburg County Court of Common Pleas on February 8, 2019).
Petitioner's Prior Collateral Attack in this Court
The petitioner then filed a federal habeas petition in this court pursuant to § 2254 on March 1, 2019. Craig v. State of S.C., C/A No. 6:19-cv-624-JFA (D.S.C.) (“Federal Petition 1”). On February 24, 2020, the petitioner moved to voluntarily dismiss Federal Petition 1 without prejudice. Id. at doc. 40. Over the respondent's objection, the petitioner's request was granted on March 23, 2020. Id. at doc. 49. The petitioner filed a motion on March 17, 2022, to reopen Federal Petition 1, but his motion was denied, and he was instructed to file a new habeas action. Id. at docs. 53, 56.
Petitioner's Second Collateral Attack in State Court
After dismissal of Federal Petition 1, the petitioner filed a second PCR action in the Spartanburg County Court of Common Pleas on June 1, 2020. See Spartanburg County Public Index (enter the petitioner's name and 2020-CP-42-01791) (last visited July 25, 2022). The PCR action was dismissed on January 11, 2022, as untimely and successive and because the petitioner did not satisfy the standard for a newly discovered evidence claim. Id. The petitioner appealed, but his appeal was dismissed. Craig v. State of S.C., C/A No. 2022-000097 (S.C.) (remittitur entered in the Spartanburg County Court of Common Pleas on March 17, 2022).
Petitioner's Present Action
The petitioner then filed the instant action seeking habeas relief for his convictions (doc. 1). As his first ground for relief in the instant matter, the petitioner asserts IAC based on counsel's failure to investigate the petitioner's mental health background (id. at 5-7). In his second ground for relief, he alleges due process violations and violations of South Carolina Code § 17-27-45(c) because he claims he was not provided information regarding a gunshot residue report in discovery (id. at 7-8). In his third ground for relief, the petitioner alleges newly discovered evidence because there was a gunshot residue expert involved in the case of whom the petitioner was previously unaware (id. at 8-10).
As for timeliness, the petitioner contends that his untimely petition should be excused based upon his mental health background (id. at 13-14). For relief, the petitioner seeks to have his convictions and sentences vacated and set aside (id. at 15).
STANDARD OF REVIEW
The undersigned has reviewed the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's 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 (2007) (percuriam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
Because the petitioner filed his petition after the effective date of the AEDPA, review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997). Under the AEDPA, a petition for writ of habeas corpus must be filed within one year 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).However, “[t]he time during which a properly filed application for State post-conviction or collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” Id. § 2244(d)(2) (emphasis added). 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).
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).
As noted, after a jury trial, the petitioner was found guilty on the charges outlined above, and he was sentenced on July 25, 2013. See Spartanburg County Public Index (enter the petitioner's name and 2013GS4202844, 2013GS4202845, 2013GS4202846, 2013GS4202847, 2013GS4202848, 2013GS4202849, 2013GS4202850, 2013GS4202851,2013GS4202852, 2013GS4202853, 2013GS4202854, 2013GS4202855, M757599, M757600) (last visited July 25, 2022). The petitioner filed an appeal to the Court of Appeals of South Carolina, which affirmed his convictions and sentence on November 26, 2014. State of S.C. v. Craig, C/A No. 2013-001690, 2014 WL 6721434 (S.C. Ct. App. Nov. 26, 2014). Thus, the petitioner's convictions and sentence became final on December 11,2014. As noted, the Court of Appeals of South Carolina issued the opinion in the direct appeal on November 26, 2014. The petitioner had fifteen days in which to file a petition for rehearing. Rule 221(a), SCACR. He did not file such a petition. Filing a petition for rehearing and obtaining ruling on the petition are conditions precedent to filing a petition for writ of certiorari in the Supreme Court of South Carolina. Rule 242(c), SCACR. 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 or 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.”); Muqit v. McFadden, C/A No. 8:14-3555-RBH, 2016 WL 4613398, at *4 (D.S.C. Sept. 6, 2016) (“Because Petitioner did not file a petition for rehearing or seek discretionary review in the South Carolina Supreme Court, his convictions became final fifteen days later . . . .”). Moreover, the petitioner's failure to seek review in the Supreme Court of South Carolina prevented him from meeting the jurisdictional requirements to seek review in the Supreme Court of the United States. Gonzalez, 565 U.S. at 154 (finding the 90-day period in which to seek review by the Supreme Court is not applied where habeas petition failed to appeal to the state's highest court); see Hammond v. Hagan, C/A No. 4:07-1081-JFA-TER, 2008 WL 2922860, at *3 (D.S.C. July 24, 2008) (petitioner who fails to seek review in state supreme court “is not entitled to an additional tolled time period of 90 days in which to seek certiorari review from the United States Supreme Court”). Thus, the petitioner's convictions and sentence became final on December 11, 2014, and his time for filing his federal habeas petition began to run thereafter.
The petitioner filed his first PCR action on March 6, 2015. See Spartanburg County Public Index (enter the petitioner's name and 2015-CP-42-00937) (last visited July 25, 2022). At that point, 85 days of untolled time had lapsed, leaving 280 days in the federal limitations period. The petitioner's time limit remained tolled until the PCR appeal concluded. Using the date most favorable to the petitioner, the tolled period for the PCR action concluded on February 8, 2019, when the Spartanburg County Clerk of Court filed the remittitur in the PCR appeal. Spartanburg County Public Index (enter the petitioner's name and 2015-CP-42-00937) (last visited July 25, 2022). 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))). The petitioner filed Federal Petition 1 in this court on March 1,2019 (the date the petitioner's petition was marked as received by the mailroom); however, because the filing of a federal habeas petition does not toll the statute of limitations, Duncan v. Walker, 533 U.S. 167, 181-82 (2001), the petitioner's time began running again at the conclusion of his state PCR action on February 8, 2019, and expired 280 days later on November 15, 2019.
During this same time, the petitioner filed a second PCR action in the Spartanburg County Court of Common Pleas. Spartanburg County Public Index (enter the petitioner's name and 2020-CP-42-01791) (last visited July 25, 2022). However, because the petitioner's second PCR action was dismissed as successive and untimely, it does not toll the statute of limitations for federal habeas purposes. Id.; see Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (noting that “[w]hen a post-conviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2)” tolling); Randolph v. Warden, Perry Corr. Inst., C/A No. 2:07-cv-00245-MBS, 2008 WL 508674, at *2 (D.S.C. Feb. 21,2008), appeal dismissed 274 Fed.Appx. 278 (4th Cir. 2008) (noting that PCR action that was dismissed as untimely and successive not “properly” filed and “does not qualify for tolling pursuant to § 2244(d)(2)”).
The petitioner filed this federal habeas petition on April 26, 2022, the date he delivered the petition to the prison mail room for filing with this court (doc. 1-3). 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). Therefore, a total of 1258 days of untolled time lapsed between the petitioner's convictions becoming final and the filing of this § 2254 petition. As the petitioner exceeded the statute of limitations by more than 850 days, it appears that his petition is untimely. In light of the untimely nature of the petitioner's petition, on June 10, 2022, the undersigned issued an order to show cause providing the petitioner with the opportunity to provide a factual explanation to show cause why his petition should not be dismissed based on the application of the one-year limitation period established by 28 U.S.C. § 2244(d) (doc. 9). After receiving additional time to respond (doc. 12), the petitioner filed his response to the order on July 14, 2022 (doc. 14).
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. 631,649 (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, 544 U.S. at 418 (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). Here, the petitioner's petition and his response to the order to show cause assert that he is entitled to equitable tolling based upon the 2018 riot at Lee Correctional Institution (“Lee”) limiting his access to the law library (doc. 14 at 2-3, 4); his mental health background (docs. 1 at 13-14; 14 at 4); and because he is actually innocent (docs. 1 at 8-10; 14 at 3-4, 5-11).
The petitioner has failed to meet the standard for equitable tolling based upon the Lee riot that took place in 2018. In essence, it appears that the petitioner's argument is that he dismissed Federal Petition 1 because he did not have access to the law library to pursue the action. First, courts have found the inadequate law library access does not provide a basis for equitable tolling. See Jones v. South Carolina, C/A No. 4:05-cv-02424-CMC-TER, 2006 WL 1876543, at *3 (D.S.C. June 30, 2006); see also Booker v. Clarke, C/A No. 3:21-cv-00212 (DJN), 2022 WL 464554, at *3 (E.D. Va. Feb. 15, 2022) (explaining that routine aspects of prison life, such as restricted access to the law library do not qualify as extraordinary circumstances to justify equitable tolling). Moreover, the petitioner's assertion is belied by the record in Federal Petition 1. For example, the petitioner sought additional time to respond to the respondent's motion for summary judgment (filed June 20, 2019), asserting that he needed the extension based upon a death in the family - not because of access to the law library. Craig, C/A No. 6:19-cv-00624-JFA, at doc. 23. Additionally, although the petitioner indicated in his October 18, 2019, filing that he needed more time to respond to the respondent's motion based upon access to the law library, his deadline was extended for an additional four months to February 26, 2020, and the petitioner did not indicate that he was still unable to access the law library. Id. at docs. 33; 37. Moreover, the petitioner's motion for voluntary dismissal did not mention access to the law library - instead requesting that Federal Petition 1 be dismissed without prejudice. Id. at doc. 40. In granting the motion, the Honorable Joseph F. Anderson, Jr., Senior United States District Judge, warned the petitioner that he ran the risk of “his own claims being barred by the statute of limitations,” but noted that the petitioner was the “master of his own claims.” Id. at doc. 49 p. 3.
Additionally, the petitioner's ability to draft, file, and prosecute a second PCR action in South Carolina state court since the dismissal of Federal Petition 1 undermines his assertion that denial of access to the law library prevented him from filing a timely habeas petition. See Spartanburg County Public Index (enter the petitioner's name and 2020-CP-42-01791) (last visited July 25, 2022) (noting that the second PCR action was filed on June 1,2020). Instead, the petitioner waited two years to file the instant matter on April 26, 2022 - filing this action right after receiving the dismissal order in his second PCR action appeal (doc. 1-3). See Craig v. State of S.C., C/A No. 2022-000097 (S.C.) (remittitur entered in the Spartanburg County Court of Common Pleas on March 17, 2022). As such, in light of the foregoing, the undersigned finds that the petitioner has failed to show that he is entitled to equitable tolling based upon access to the law library after the Lee prison riot in 2018.
With respect to the petitioner's assertion that he is entitled to equitable tolling based on his mental health background, a “bare assertion” that a petitioner suffers from a mental impairment, without more, is insufficient to justify equitable tolling. See Robinson v. Hinkle, 610 F.Supp.2d 533, 539 (E.D. Va. 2009), appeal dismissed, 357 Fed.Appx. 517 (4th Cir. 2009), cert. denied 559 U.S. 1040 (2010). Indeed, “a causal link between the mental condition and untimely filing is required. See Hoover v. Clarke, C/A No. 1:20-cv-01107, 2022 WL 287928, at *3 (E.D. Va. Jan. 31, 2022) (internal quotation marks and citation omitted). Further, a petitioner's ability to submit other legal filings during the alleged “period of his incompetency counsels strongly against allowing equitable tolling of a petitioner's federal habeas petition.” Id. (quoting Robinson, 610 F.Supp.2d at 540). Here, although the petitioner alleges that his mental health background prevented him from filing a timely petition, the petitioner's litigation history does not support his assertion. For example, as outlined above, the petitioner pursued a direct appeal and a PCR action before filing Federal Petition 1 and then filed a second PCR action after voluntarily dismissing Federal Petition 1. Moreover, Judge Anderson, in dismissing Federal Petition 1 (at the petitioner's request) noted that the petitioner ran the “risk of his own claims being barred by the statute of limitations.” See Craig, C/A No. 6:19-cv-00624-JFA, at doc. 49 pp. 3-5. Further, as noted above, after dismissing Federal Petition 1, the petitioner pursued a second PCR action in the state court. See Spartanburg County Public Index (enter the petitioner's name and 2020-CP-42-01791) (last visited July 25, 2022). In light of the foregoing, the petitioner's bare assertion in his petition and in passing in his response to the order to show cause that his mental health background prevented him from filing a timely petition does not meet the extraordinary circumstances standard. As such, the undersigned finds that the petitioner has failed to show that he is entitled to equitable tolling based upon his mental health background.
Additionally, to the extent the petitioner contends that he is actually innocent and is thus entitled to an exception to the statute of limitations, the Supreme Court has stated that to “invoke the miscarriage of justice exception to AEDPA's statute of limitations, . . . a petitioner ‘must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.'” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); see Schlup, 513 U.S. at 324 (a petitioner must “support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial”). “Moreover, a petitioner must show factual innocence and not merely legal insufficiency.” Hutley v. Warden, Lieber Corr. Inst., C/A No. 9:17-cv-2962-TMC, 2018 WL 3303283, at *3 (D.S.C. July 5, 2018) (citing Bousley v. United States, 523 U.S. 614, 623 (1998)). Here, the petitioner rehashes the evidence considered by the jury and asserts that the jury erred in finding that he matched the individual in the surveillance video and asserts that he has newly discovered evidence from a gunshot residue expert (see docs. 1; 14). First, the petitioner's reference to portions of the trial transcript in arguing actual innocence fails because he has not identified “new reliable evidence” - instead, he argues legal insufficiency of the evidence. See Hutley, 2018 WL 3303283, at *3 (noting that actual innocence claims require the identification of new reliable evidence that “was not presented at trial” (internal quotation marks omitted) (quoting Schlup, 513 U.S. at 324)).
The petitioner's reliance on the alleged gunshot residue expert letter also does not meet the actual innocence standard. The plaintiff alleges that he just discovered a report from a gunshot residue expert dated July 10, 2013, which constitutes new evidence of his innocence (doc. 14 at 6-7). However, the Supreme Court of the United States has noted that new reliable evidence of innocence is a “rarity.” Calderon v. Thompson, 523 U.S. 538, 559 (1998). Indeed, the standard set by the Supreme Court is that a “petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Schlup, 513 U.S. at 327. Here, the report does not meet that standard. In asserting actual innocence, the petitioner argues that the gunshot residue found on his hands was transferred from the handcuffs used by the arresting officer and not from him firing a gun (docs. 1 at 8; 14 at 5-7). However, the report by the gunshot residue expert did not definitively indicate that the gunshot residue was transferred by the handcuffs, noting:
There were 6 [gun shot residue (“GSR”)] samples collected from [the petitioner's] Celebrity jacket and 2 from the Mecca blue jeans. A total of 5 GSR particles were found on these items. These particles could have originated from the discharge of a gun, being in the vicinity of a discharging gun or the items having touched or been touched by anything or anybody with GSR already present. Examples of this contamination could be from being handled by a police officer, riding in a police vehicle or being processed in a room used by other suspects that had GSR on them. Other possibilities would be the handling of a gun or any other items with GSR present.(Doc. 14-1 at 4). Indeed, trial counsel testified at the PCR hearing that although he had contacted a gunshot residue expert, he did not call him as a witness because the testimony would “not have been beneficial.” See Craig, C/A No. 6:19-cv-00624-JFA, at doc. 19-2 p. 215. Moreover, the petitioner's assertion that evidence from the gunshot residue expert would prove his innocence ignores the other evidence presented during the trial identifying the petitioner as being involved in the robbery - including eyewitness testimony by one of the victims that he clearly saw the petitioner's face and was able to identify the petitioner based on a picture shown on the news. See id. at doc. 19-1 pp. 217-20. As such, the petitioner's claim of actual innocence does not approach the standard necessary to overcome the statute of limitations. Based on the foregoing, the petitioner's petition is not entitled to equitable tolling; thus, it is untimely and should be dismissed.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2254 petition be dismissed as time-barred. The attention of the parties is directed to the important notice on the next page.
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
250 East North Street, Room 2300
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).