Opinion
C/A 4:23-1753-SAL-TER
02-28-2024
TIMOTHY JOHNSON, Petitioner, v. S. JACKSON, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
Petitioner, Timothy Johnson (“Petitioner/Johnson”), is an inmate in the custody of the South Carolina Department of Corrections (SCDC). Petitioner, appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 27, 2023. On June 5, 2023, Petitioner filed a response to the court's order of May 2, 2023, with additional arguments. This document was attached to the petition by the court. (ECF No.1-2). Respondent filed a motion for summary judgment on September 27, 2023, along with a return and supporting memorandum. (ECF Nos. 28 and 29). Because Petitioner is proceeding pro se, he was advised on or about September 29, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), that a failure to respond to the Respondent's motion for summary judgment could result in the dismissal of his petition. Petitioner filed a response in opposition on October 30, 2023. (ECF No. 34).
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
It is recommended that Respondent's motion for summary judgment be granted and this action be dismissed as barred by the statute of limitations.
I. PROCEDURAL HISTORY
Petitioner is currently confined in the South Carolina Department of Corrections pursuant to orders of commitment from the Clerk of Court for Florence County. During the October 2025 term of the Florence County Grand Jury, Petitioner was indicted for one count of trafficking heroin greater than 28 grams, one count of trafficking heroin greater than 28 grams (conspiracy), seven counts of distributing heroin, and one count of possession of heroin with intent to distribute. Petitioner pleaded guilty before the Honorable Robert H. Henderson on August 2, 2016, to ten counts on the indictments. Petitioner was facing 170 years in prison but was sentenced to an aggregate of 10 year's imprisonment after pleading guilty.
Direct Appeal
Petitioner did not appeal his conviction or sentence.
PCR Action
On April 17, 2017, Petitioner filed an Application for Post-Conviction Relief (PCR). In his initial application, Petitioner raised the following claims:
1. Ineffective Assistance of Counsel: Trial counsel failed to conduct factual and legal investigation;
2. State Grand Jury unconstitutional[ly] assembled, evidence inadmissible: Grand Jury lacked probable cause to indict and violate fair cross section; and
3. Conviction obtained in violation of constitutional rights: rights were violated when no warrants were served for arrest-detention.(ECF No. 28-1 at 34-40). On January 25, 2018, Petitioner, through counsel, amended his application. Pursuant to the PCR court's order of dismissal, Petitioner raised the following additional claims:
4. Counsel was ineffective for failing to properly advise Applicant regarding entry into a plea agreement that would constitute a waiver of Applicant's appellate and post conviction relief rights.
5. Counsel was ineffective for failure to meet with Applicant in a sufficient amount for Applicant to understand the nature of the allegations against him, any potential defenses he may have had, and the State's burden of proof with respect to this charges, thus rendering Applicant's plea involuntarily entered into. Counsel was ineffective for misleading and misinforming Applicant that all other defendants alleged in the indictment had agreed to cooperate against Applicant and that Applicant was the final remaining defendant, thus rendering Applicant's plea involuntarily entered into; and
6. Counsel was ineffective for failure to investigate the facts and
circumstances of alleged video and photographic evidence.(ECF No. 28-6).
An evidentiary hearing was convened on February 2, 2018, before the Honorable Michael G. Nettles. (ECF No. 28-1 at 47-95). Petitioner was represented by appointed counsel, Jonathan Waller, Esquire. The court heard testimony from Petitioner and plea counsel, Brendan Barth. By order dated March 20, 2018, Judge Nettles denied and dismissed with prejudice Petitioner's PCR application. (ECF No. 28-1 at 96-105). Petitioner did not file a Rule 59 motion to alter or amend judgment.
PCR APPEAL
On November 19, 2018, Petitioner filed a petition for writ of certiorari in the South Carolina Supreme Court. (ECF No. 28-3). Petitioner raised one ground:
Whether trial counsel provided ineffective assistance of counsel when he failed to explain fully the consequences of the appellate review and postconviction relief waiver in Petitioner's guilty plea, such that Petitioner's post-conviction relief waiver was not knowingly, voluntarily or intelligently made?(ECF No. 28-3 at 3).
The Supreme Court of South Carolina transferred the PCR appeal to the South Carolina Court of Appeals in April 2019. (ECF No. 28-7). The Court of Appeals denied the writ of certiorari on October 15, 2020, and the remittitur was issued on November 5, 2020, and filed with the Florence County Clerk of Court on November 9, 2020. (ECF No. 28-9). The Order denying certiorari was returned to the Court of Appeals on December 22, 2020, as it was “inadvertently addressed” to the incorrect inmate. (ECF No. 26-10; ECF No. 28 at 6).
Habeas Petition
Petitioner filed his Petition for Writ of Habeas Corpus with a Houston v. Lack delivery date of April 25, 2023. (ECF Nos. 1-1). The motion for Summary Judgment was filed on September 27, 2023.
SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. 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, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with ... affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
STATUTE OF LIMITATIONS
The Respondent asserts that the Petitioner's claims must be dismissed as untimely.
The applicable law is as follows: The AEDPA became effective on April 24, 1996. The AEDPA substantially modified procedures for consideration of habeas corpus petitions of state inmates in the federal courts. One of those changes was the amendment of 28 U.S.C. § 2244 to establish a one-year statute of limitations for filing habeas petitions. Subsection (d) of the statute now reads:
Prior to this amendment there was no statute of limitations. Habeas Rule 9(a) allowed dismissal only where the state could show it had been prejudiced by a delay in filing. Duarte v. Hershberger, 947 F.Supp. 146, 148, n.2 (D.N.J. 1996).
(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 limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a “properly filed” application for State post- conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. (Emphasis added).
As stated under the procedural history, Petitioner did not file a direct appeal after his sentencing on November 14, 2016. Adding ten days from November 24, 2016, to allow time to file a direct appeal, the statute of limitations began to run on November 25, 2016. After 140 days of untolled time had expired, Petitioner filed a PCR application on April 13, 2017, tolling the statute of limitations. On October 15, 2020, the PCR appeal was denied and the remittitur was filed with the Florence Clerk of Court on November 9, 2020. Additional time commenced on November 10, 2020, the day after the South Carolina Court of Appeals issued its remittitur. See Thomas v. McKendley Newton, Jr., No. CV 2:19-3179-MBS, 2021 WL 1134759, at *11, fn. 3 (D.S.C. Mar. 24, 2021). This action was filed on April 25, 2023, the Houston v. Lack, 487 U.S. 266 (1988) delivery date. (ECF No. 1-3). Thus, another 897 days of untolled time lapsed for a total of 1037 lapsed days before the petition was filed. Accordingly, the instant petition is time-barred by 672 days and should be dismissed.
In the case of Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000), the Fourth Circuit aggregated time periods to conclude that a federal habeas petition was time barred under 28 U.S.C. § 2244(d). In Harris, the Fourth Circuit stated:
Thus, for Harris, the one-year limitation period imposed by §2244(d) commenced on April 24, 1996. Ten-and-one-half months later, on March 12, 1997, Harris filed his petition for state post-conviction review, which suspended the running of the one-year limitation period. This petition remained “pending” in state courts until January 7, 1998,
when the Maryland Court of Appeals denied Harris' application for leave to appeal the denial of his petition. At this point, the clock began running again on the one-year limitation period, expiring one-and-one-half months later, in February 1998. Harris did not file his federal habeas petition until July 22, 1998, six months after his one-year period had expired. Therefore, the petition was time-barred under 28 U.S.C. § 2244(d).Harris, 209 F.3d at 327.
The federal one-year statute of limitations can be subject to equitable tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2552-2554, 2560-2562 (2010); see also Rouse v. Lee, 314 F.3d 698, 704 (4th Cir.2003) (citing Harris v. Hutchinson, 209 F.3d 325, 330 (0 Cir.2000)). Circumstances will rarely warrant equitable tolling, however, and a Petitioner carries the burden of showing that he is entitled to equitable tolling. Harris, 209 F.3d at 330; see also Marengo v. Conway, 342 F.Supp.2d 222, 230 (S.D.N.Y.2004); Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002). Further, equitable tolling applies only in the rare and exceptional circumstance, and is limited to “extraordinary circumstances” preventing a prisoner from filing a timely petition. Warren v. Garvin, 219 F.3d 111, 113 (2d Cir.2000); Marengo, 342 F.Supp.2d at 230. Also, “the party seeking equitable tolling must [also] have acted with reasonable diligence throughout the period he seeks to toll.” Marengo, 342 F.Supp.2d at 230 (quoting Warren, 219 F.3d at 113); see also Holland, 130 S.Ct. at 2562 (“ ‘Petitioner is ‘entitled to equitable tolling' only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented timely filing.”) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)).
In his response to the motion for summary judgment, Petitioner did not address Respondent's argument as to the statute of limitations. (ECF No. 34). However, in the response to the court's proper from order of May 2, 2023, Petitioner argued that he is entitled to equitable tolling because the South Carolina Court of Appeals never served him with the remittitur after it was returned from being addressed to the wrong inmate. Petitioner states that the “question now becomes whether failing to serve remittitur tolls statute of limitations under section 2244(d). . . Does the state courts failure to do so [ failure to mail the remittitur to Petitioner] constitute as cause to excuse delay.” (ECF No. 1-2). Petitioner asserts that he attempted to file motions in the state court and attached a copy of said motions to his document. However, there were no correspondences attached to the document. (ECF No. 1-2).
Respondent acknowledges that the Court of Appeals' website does indicate the Order denying certiorari was inadvertently addressed to a different inmate and returned as undeliverable. Respondent argus, however, that PCR appellate counsel was served with the remittitur so the argument is without merit.
Petitioner has not demonstrated that he pursued his rights diligently or that some extraordinary circumstances stood in his way to prevent him from timely filing his federal habeas petition. Petitioner's PCR appeal was dismissed and the remittitur issued on November 9, 2020. Petitioner did not file his habeas petition until April 2023. While Petitioner asserts that he did not receive the remittitur because it was addressed and mailed to the wrong person and not forwarded to him, the argument does not meet the requirements for equitable tolling. Respondent asserts that a copy of the remittitur was sent to Petitioner's PCR counsel. If PCR counsel did not provide Petitioner with a copy, attorney error does not warrant an extraordinary circumstance to warrant equitable tolling. See Asbury v. Stevenson, 2010 WL 3814477, at *7 (D.S.C. Sept. 23, 2010) (citing Smith v. Bodison, 2009 WL 2340648, at *6 (D.S.C. July 29, 2009)) “Even if Ganjehsani [PCR appellate counsel] failed to send a copy of the remittitur to Petitioner, “attorney error of this type does not amount to an extraordinary circumstance entitling a habeas petitioner to the benefit of the doctrine of equitable tolling.”; Blake v. Walker-Staley, 2016 WL 1253185, at *4 (D.S.C. Mar. 31, 2016) (“Thus, the cumulative effect of Ganjehsani's ‘abandonment' was simply a failure to notify Blake of the remittitur. This court has squarely held that ‘attorney error of this type does not amount to an extraordinary circumstance entitling a habeas petitioner to the benefit of the doctrine of equitable tolling.' Asbury v. Stevenson, 2010 WL 3814477, at *7 (D.S.C. Sept. 23, 2010). Without more, Blake's claim resembles the “garden variety claim of excusable neglect” described in Holland, which does not warrant equitable tolling. See Holland, 560 U.S. at 651-52"). The Asbury court further found that:
Petitioner's PCR became final with the return of the remittitur by the South Carolina Court of Appeals on October 9, 2007. The remittitur clearly shows that a copy was sent to petitioner's attorney. Contrary to petitioner's argument, there is no requirement established by the South Carolina Rules of Civil Procedure that the South Carolina courts personally serve documents on litigants who are represented by counsel. The issues, therefore, are whether petitioner's counsel failed to send the appropriate documents to petitioner and, if so, whether such failure is the type of “extraordinary circumstances” that would meet the equitable tolling standard. Assuming that counsel failed to send petitioner a copy of the remittitur (or a copy of the order denying the writ of certiorari by the South Carolina Court of Appeals), attorney error of this type does not amount to an extraordinary circumstance entitling a habeas petitioner to the benefit of the doctrine of equitable tolling. Smith v. Bodison, 2009 WL 2340648, *6 (D.S.C. Jul.29, 2009) (citing Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir.2001); Taliani v. Chrans, 189 F.3d 597 (7th Cir.1999)). Moreover, there is no constitutional right to effective assistance of counsel in state post-conviction proceedings. Wise v. Williams, 982 F.2d 142, 144 (4th Cir.1992).
Furthermore, Petitioner has not demonstrated due diligence. He waited from the date he filed his PCR appeal on November 19, 2018, until April 2023, to file his habeas petition. Petitioner asserts that he mailed motions to the state court but they were returned to him. He did not attach any motions to his petition or otherwise provide copies (or any related correspondence) to this court.
See Smith v. Bodison, No. CIV.A.209-489-HFFRSC, 2009 WL 2340648, at *1-3 (D.S.C. July 29, 2009)(. . . other courts have addressed the question of whether an attorney's failure to respond to a client's letters amounts to reasonable diligence, and every decision the Court could locate rejected application of the doctrine of equitable tolling under circumstances similar to those present here. E.g., Murray v. United States, No. 07-3687, 313 Fed.Appx. 924, 925 (8th Cir. Mar.10, 2009) (finding movant failed to exercise reasonable diligence warranting equitable tolling where he sent letters to his attorney and called attorney's office); United States v. Tafoya, No. 05-2092, 164 Fed.Appx. 700, 701-02 (10th Cir. Jan.20, 2006) (concluding that three letters sent by movant to his attorney fails to rise to level of diligent pursuit of his claims); Logreira v. Secretary for the Dep't of Corr., No. 05-13778, 161 Fed.Appx. 902, 904 (11th Cir. Jan.11, 2006) (finding petitioner failed to exercise sufficient diligence where he mailed repeated letters to the clerk of court regarding the status of his case); Lewis v. Cockrell, No. 00-10836, 2002 WL 432658 (5th Cir. Mar.5, 2002) (finding petitioner's numerous letters to his attorney and court clerks was “insufficient to meet the high standard necessary for equitable tolling.”); but see McCowen v. Conway, No. 07-3316, 2008 WL 123940, at * 4 (E.D.N.Y. Jan.10, 2008) (finding that two letters to attorney and one to the clerk of court constituted “reasonable diligence” but holding petitioner not entitled to equitable tolling because of failure to demonstrate “extraordinary circumstances”). Given the weight of authority on this issue and the Rouse Court's clear limitations on equitable tolling, the Court finds that Petitioner has failed to act with the reasonable diligence necessary for application of equitable tolling. Furthermore, Petitioner fails to point to any extraordinary circumstances that prevented him from diligently pursuing his rights.
Accordingly, the petition should be dismissed as barred by the statute of limitations, and Respondent's motion for summary judgment be granted.
Since the undersigned finds this action is time barred by the one-year statute of limitations, the issues raised in the habeas petition will not be addressed on the merits.
CONCLUSION
For the above stated reasons, it is RECOMMENDED that Respondent's motion for summary judgment (ECF No. 29) be GRANTED, and the petition be dismissed without an evidentiary hearing.
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 Post Office Box 2317 Florence, South Carolina 29503
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).