Opinion
C. A. 8:23-cv-4221-JD-JDA
09-18-2023
Terron Gerhard Dizzley, Petitioner, v. Warden William Langdon, Respondent.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Terron Gerhard Dizzley (“Petitioner”), proceeding pro se, brings this habeas corpus action 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 Allendale Correctional Institution. [Doc. 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 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 [Doc. 1] and a separate 81-page document detailing the 54 grounds for relief he asserts in this action [Doc. 1-1]. The Court construes both of these documents together as the “Petition” filed in this matter. Additionally, Petitioner has filed numerous exhibits in support of the Petition. [Docs. 1-3; 1-4; 1-5; 1-6; 1-7; 1-8; 1-9; 1-10; 1-11; 1-12.]
Petitioner alleges he was convicted on April 3, 2014, in the Georgetown County Court of General Sessions at case number 2009-GS-22-00778 for murder and possession of a weapon during the commission of a violent crime and sentenced the same day to a term of 35 years' imprisonment. [Doc. 1 at 1.] As noted, Petitioner asserts 54 grounds in his Petition. For his relief, Plaintiff requests “his immediate relief from being falsely imprisoned by the State of South Carolina.” [Id. at 15.]
State Court Procedural History
The undersigned notes that, in addition to the cases referenced herein, Petitioner has filed numerous other actions related to his challenge to his conviction and sentence in the sentencing court, the South Carolina Court of Appeals, and this Court.
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.'”).
Direct Appeal
Petitioner filed a direct appeal from his conviction and sentence at case number 2014-001339, but the South Carolina Court of Appeals dismissed the appeal on July 16, 2015. See State v. Dizzley, No. 2014-001339, available at https://ctrack.sccourts.org/ public/caseSearch.do (search by Appellate Case No. “2014-001339”) (last visited Sept. 5, 2023). In the Order dismissing the appeal, the Court of Appeals noted,
It appears that [Petitioner], with full understanding of all possible consequences of this action and with agreement of counsel, wishes to withdraw and dismiss this matter.Id. (footnote added). The Court of Appeals issued a remittitur on August 4, 2015. Id.
In the Petition, Petitioner asserts that he “was deprived of his [d]irect [a]ppeal” because his trial transcript was not available at the time of his direct appeal. [Doc. 1 at 6.]
Post-Conviction Relief
On September 9, 2015, Petitioner filed a post-conviction relief (“PCR”) action in the Georgetown County Court of Common Pleas at case number 2015-CP-22-00845. [Doc. 1 at 3]; see also Dizzley v. State of South Carolina, No. 2015-CP-22-00845 (“Dizzley PCR Action”), available at https://publicindex.sccourts.org/Georgetown/PublicIndex/ PISearch.aspx (search by case number “2015CP2200845”) (last visited Sept. 5, 2023). On December 2, 2019, the PCR court entered an order of dismissal denying and dismissing the PCR application. Id.
In the present action, Petitioner contends that he was “intentionally impeded from raising” his claims in his PCR action “due to ‘Fraud Upon the Court'” and “fraudulent representation.” [Doc. 1 at 3.]
Petitioner filed an appeal, and the Supreme Court of South Carolina dismissed the petition for a writ of certiorari on April 27, 2021. Id. A remittitur was 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
This action is subject to summary dismissal because the Petition is untimely under the applicable statute of limitations.
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. 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). 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). “Following 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, as in the present case, the conviction becomes final 90 days after the final ruling of the South Carolina Supreme Court. See Myers, 2011 WL 7143471, at * 8.
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).
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 April 3, 2014, and sentenced that same day. [Doc. 1 at 1.] Because Petitioner filed a direct appeal, his conviction became final on November 2, 2015, 90 days after the remittitur was issued by the South Carolina Court of Appeals on August 4, 2015. See Rule 203(b)(2), SCACR; Crawley, 257 F.3d at 398. Thus, the AEDPA's one-year statute of limitations began to run on that date and would expire on November 2, 2016, unless the time was tolled.
As noted, Petitioner filed a PCR application in the Georgetown County Court of Common Pleas on September 9, 2015. When Petitioner filed his PCR application, no days of non-tolled time had lapsed because he filed his PCR action prior to the date that his conviction became final. Thus, Petitioner had the full 365 days of non-tolled time remaining within which to timely file a federal habeas petition following the conclusion of the state court proceedings on his PCR application.
The PCR Court entered its order of dismissal on December 2, 2019. Petitioner filed an appeal, and the South Carolina Supreme Court dismissed the appeal by order dated April 27, 2021, and the remittitur was entered on the PCR docket on May 19, 2021. The judgment in the PCR action became final at that time. See Smith v. Warden of Perry Corr. Inst., 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.”). Thus, the one-year statute of limitations began to run on May 19, 2021.
As noted, Petitioner had 365 days of non-tolled time remaining, or until May 19, 2022, to file a federal habeas action. Petitioner filed the instant habeas action, at the earliest, on August 21, 2023. As such, Petitioner filed the instant Petition 459 days-more than 15 months-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 does 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). Petitioner signed his Petition on August 21, 2023. [Doc. 1 at 15.] The envelope containing the pleadings was postmarked that same day. [Doc. 1-2 at 1.] Out of an abundance of caution, the Court will use the date that Petitioner signed the Petition, August 21, 2023, as the date of filing.
Petitioner asserts that he is entitled to tolling of the statute of limitations. [Doc. 1 at 14.] Specifically, Petitioner contends that he has filed motions in the Georgetown County Court of General Sessions and Common Pleas, “which have been pending for years[ and] which the Courts refuse to adjudicate.” [Id.] Nevertheless, Petitioner has not articulated a valid basis upon which the Court should toll the applicable statute of limitations. As explained above, Petitioner had one year after the judgment of conviction became final to file the instant action, and that limitations period was tolled during the pendency of his PCR action. However, the statute of limitations is not tolled as a result of other motions that Petitioner might have filed in the state court that do not constitute a properly filed collateral attack on his conviction and sentence. Petitioner does not clarify whether he is referring to motions that were filed in his PCR action or in other state-court actions. In either case, such pending motions would not additionally toll the limitations period. As stated, the Supreme Court of South Carolina dismissed the petition for writ of certiorari related to Petitioner's properly filed PCR action, and the PCR court filed the remittitur, ending the tolling period. See Smith, 2019 WL 1768322, at *2. To the extent there are pending motions in the PCR action, those would not additionally toll the limitations period under the statute where the highest state court has disposed of the case. See Taylor, 186 F.3d at 561. And to the extent Petitioner filed additional motions in his underlying criminal case [see Doc. 1 at 4 (indicating Petitioner filed a motion for new trial and a state habeas in his criminal case at docket number 2009-GS-22-00778)], those motions likewise would not additionally toll the limitations period. 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). Additionally, nothing in the record establishes that Petitioner pursued his rights diligently between May 19, 2022, when the statute of limitations expired, and August 21, 2023, when he filed this action. Accordingly, Petitioner has not articulated any basis for the Court to equitably toll the 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).
RECOMMENDATION
Accordingly, it is recommended that this action be dismissed without requiring the Respondent to file an answer or return.
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, Suite 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).