Opinion
Civil Action 6:22-1073-DCC-KFM
07-25-2022
Jamison Daudi Holmes, Petitioner, v. Warden Lee Correctional Institution, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The petitioner, a state prisoner proceeding pro se, seeks 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.
BACKGROUND
The petitioner is currently incarcerated at Lee Correctional Institution in the South Carolina Department of Corrections ("SCDC") (doc. 1 at 1). He was indicted by the Sumter County Grand Jury in December 2016 for two counts of attempted murder, unlawful carrying of a pistol, and possession of a weapon during the commission of a violent crime (2016-GS-43-1237) (doc. 8-1 at 77-78). Willie Brunson ("trial counsel") represented the petitioner, and John Meadors represented the State (id. at 3). The petitioner accepted a plea offer for a concurrent sentence of two counts of attempted murder, with the remaining charges being dismissed (id. at 3-26). On July 21,2017, the petitioner appeared before the Honorable Ferrell Cothran, Jr., to plead guilty (id.). Following the conclusion of the guilty plea, the court sentenced the petitioner to an 18-year concurrent term of incarceration for both counts of attempted murder (id. at 26-27).
Underlying Case Facts
According to the State, on July 17, 2016, the petitioner got into an altercation with a female outside of Studio 378, a private club in Sumter, South Carolina (doc. 8-1 at 9). The petitioner subsequently attempted to go inside the club, but the owners and the security team denied the petitioner access (id. at 9-10). The petitioner walked back to his vehicle, reached into the passenger side, opened the glove compartment, put something into either his pocket or waistband, and walked back towards the club (id. at 10). James McLeod ("Mr. McLeod"), a member of the security team, approached the petitioner, and the petitioner pulled a .38 revolver out of his pocket or waistband but dropped it (id.). The petitioner then picked up the revolver and immediately fired into Mr. McLeod's chest at point blank range (id.). Mr. McLeod was wearing a bulletproof vest, which saved his life (id. at 10-11, 18). The petitioner then turned and fired at Richard Cason ("Mr. Cason"), another member of the security team, who was shot in the side but was also wearing a bulletproof vest (id. at 11-12). Both Mr. McLeod and Mr. Cason returned fire, causing the petitioner to receive several gunshot wounds (id.). The petitioner got into his vehicle and sped away, ultimately driving his car into a building (id. at 11). Officers arrived at the scene and asked the petitioner if he had a gun, and he said that he did not (id. at 11-12). However, an officer looked inside the vehicle and found a .38 caliber weapon on the floorboard (id. at 12). The petitioner was taken from the scene and transported to the hospital (id.). Forensics later took bullet fragments from Mr. Cason's vest and tested them (id. at 12-13). The ballistic report determined that the fragments found in the vest came from the bullets of a .38 caliber weapon (id. at 13). The only person at the scene firing a .38 caliber was the petitioner, as the security team members were carrying .40 caliber weapons (id.).
Direct Appeal
The petitioner did not directly appeal his guilty plea convictions or sentences (doc. 8-1 at 70).
PCR
The petitioner filed a pro se post-conviction relief (“PCR”) application on May 3, 2018, alleging the following grounds for relief:
1. Ineffective Assistance of Counsel a. Misinformed by counsel of rights [and] evidence
2. Bias Sentencing a. Sentenced on possibility instead of actuality(Doc. 8-1 at 29-33). The State filed its return on August 16, 2018 (id. at 34-38).
An evidentiary hearing was held on November 16, 2018, before the Honorable George M. McFaddin, Jr. (doc. 8-1 at 40). The petitioner was present at the hearing and represented by Timothy Griffith (id.). The State was represented by Benjamin Limbaugh of the South Carolina Attorney General's Office (id.). Both the petitioner and his trial counsel testified (id. at 44-66). By written order filed on March 6, 2019, the PCR court denied and dismissed the petitioner's PCR application with prejudice, finding that the petitioner failed to establish any constitutional violations or deprivations before or during his trial and sentencing proceedings, trial counsel was not deficient, and the petitioner was not prejudiced by his trial counsel's representation (id. at 69-76).
PCR Appeal
The petitioner, represented by Taylor Gilliam, appealed the PCR court's decision and filed a Johnson petition for writ of certiorari before the Supreme Court of South Carolina on December 30, 2020, presenting the following issue:
Whether the PCR court erred in denying relief, where plea counsel failed to explain a ballistics report to Petitioner, where the report was provided in discovery immediately before Petitioner's plea, and where Petitioner believed the report exonerated him?(Doc. 8-3 at 3). On December 31, 2020, the Supreme Court of South Carolina delivered a letter to the petitioner explaining the Johnson petition and allowing him 45 days to respond (doc. 8-4 at 1-2). The petitioner filed a pro se response on February 18, 2021 (doc. 8-5 at 1-3). On February 23, 2021, the Supreme Court of South Carolina transferred the matter to the Court of Appeals of South Carolina (doc. 8-6 at 1). The Court of Appeals issued an order denying the petitioner's writ of certiorari on June 30, 2021 (doc. 8-7 at 1). The Court of Appeals issued the remittitur on July 16, 2021 (doc. 8-8 at 1), and the Sumter County Clerk of Court filed the remittitur on July 20, 2021. Sumter County Public Index, https://publicindex.sccourts.org/sumter/publicindex/ (Holmes, Jamison, 2018CP4300806) (last visited July 25, 2022).
The court takes judicial notice of the records in the petitioner's PCR action. 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.'”).
Federal Petition
On April 4, 2022, the petitioner filed the instant § 2254 petition, raising the following grounds for relief:
GROUND ONE: Ineffective Assistance of Counsel
SUPPORTING FACTS: My attorney William Brunson failed to investigate the legality of the indictment which was not stamped [and] signed within 90 days of the arrest. I continuously asked for the indictment to no avail. I didn't receive a copy until May of 2018 after filing my PCR.
GROUND TWO: Ineffective Assistan[c]e of Counsel
SUPPORTING FACTS: Att[orney] Brunson lied to me about the results of the forensic report stating the firearm found in my vehicle was listed on the report. But the report wasn't presented to me until October 2017 after he convinced me to plea knowing I was innocent.
GROUND THREE: Ineffective Assistance of Counsel
SUPPORTING FACTS: After receiving the forensic report, I contacted Atty Brunson['s] office to meet about filing a direct appeal. On two occasions he made appointments to meet with me but cancelled both appointments. Leaving me unaware of my rights for direct appeal.
GROUND FOUR: Conflict of Interest
SUPPORTING FACTS: The foreperson of the Grand Jury, R.E. Galloway, Jr[.], who illegally signed [and] stamped by indictment tried to initiate an affair with my wife [and ] mother-in-law.(Doc. 1 at 5-10). On June 2, 2022, the respondent filed a motion for summary judgment (doc. 9) and return and memorandum (doc. 8). On June 3, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately (doc. 10). The petitioner filed a response on June 27, 2022 (doc. 12), and, on July 5, 2022, the respondent filed a reply (doc. 14).
APPLICABLE LAW AND ANALYSIS
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 respondent argues that the petitioner's habeas petition is barred by the one-year statute of limitations (doc. 8 at 8-9). Because the petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the provisions of AEDPA apply. Lindh v. Murphy, 521 U.S. 320, 336-37 (1997). 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 § 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).
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 July 21,2017, and he did not file a direct appeal. Thus, the petitioner's conviction became final on July 31, 2017. 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 federal time ran from August 1, 2017, until he filed his PCR application on May 3, 2018. At that point, 275 days of untolled time had lapsed. 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 July 20, 2021, when the Sumter County Clerk of Court filed the remittitur in the PCR appeal. 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 March 31, 2022, the petitioner delivered his federal habeas petition to prison authorities for filing in this court (doc. 1-1 at 2). 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). This was 254 days after his PCR appeal concluded. When combined with the 275 days of untolled time that elapsed prior to the petitioner filing his PCR application, a total of some 529 days of untolled time lapsed prior to the filing of the petitioner's federal habeas petition, and the petition was filed over five months after the statute of limitations expired.
A petitioner may avoid application of § 2244(d) regarding the timeliness of his federal habeas petition by showing 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). 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 v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc).
The petitioner asserts that his petition was untimely due to "the pandemic, quarantine [and] the numerous lockdowns we have here at Lee Correctional] Institution] since the horrific riot" (doc. 12 at 4). The undersigned finds that these allegations are insufficient to warrant equitable tolling. "To meet the requirements of equitable tolling, [a petitioner is required to allege with specificity the steps he took to diligently pursue his federal claims." Welch v. Nelson, C/A No. 5:21-767-MGL-KDW, 2022 WL 2068769, at *5 (D.S.C. Apr. 29, 2022) (citation and internal quotation marks omitted), R&R adopted by 2022 WL 2067883 (D.S.C. June 8, 2022). However, the petitioner has failed to point to any action he took to diligently pursue his rights. Moreover, the petitioner has failed to allege what dates he was on quarantine/lockdown or what resources were unavailable to him during the relevant time period that prevented him from timely filing his petition. The mere existence of the COVID-19 pandemic, quarantine, and lockdowns, standing alone, fail to establish extraordinary circumstances that warrant equitable tolling. See, e.g., Welch, 2022 WL 2068769, at *5 ("Although the COVID-19 pandemic did create unusual circumstances, courts have found that the COVID-19 pandemic did not automatically warrant equitable tolling for any petitioner who seeks it on that basis.") (collecting cases) (internal quotation marks omitted); Howard v. Stephan, C/A 1:21-cv-3356-RMG, 2022 WL 122963, at *3 (D.S.C. Jan. 13, 2022) (noting that "Petitioner does not explain with any level of detail the circumstances which prevented him from timely filing his petition or how Petition[er] otherwise acted with diligence in this matter" and that "[a]t bottom, and as many courts have held before, Petitioner's conclusory assertions that 'lockdowns' and 'transfers' impeded his ability pursue this case do not suffice to establish equitable tolling") (collecting cases); Cook v. Nelsen, C/A No. 0:20-173-MGL-PJG, 2020 WL 6136619, at *4 (D.S.C. Sept. 30, 2020) (finding that a petitioner's allegations that he was on lockdown due to the riots at Lee Correctional Institution did not warrant equitable tolling because the riot occurred almost one year before the conclusion of his PCR litigation in March 2019 and he failed to show that he was diligently pursuing his rights during the relevant time period), R&R adopted by 2020 WL 6136157 (D.S.C. Oct. 19, 2020). Consequently, the undersigned finds that the petitioner's § 2254 petition is barred by the statute of limitations, declines to address the petitioner's claims on the merits, and recommends that the district court grant the respondent's motion for summary judgment.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the court recommends that the respondent's motion for summary judgment (doc. 9) be granted.
IT IS SO RECOMMENDED.
The attention of the parties 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
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).