Opinion
CA 9:23-cv-00014-DCC-MHC
11-21-2023
Max J. Knoten, Petitioner, v. Warden Palmer, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Petitioner Max J. Knoten (“Petitioner”), a state prisoner proceeding pro se, seeks habeas relief pursuant to 28 U.S.C. § 2254. Respondent Warden Palmer (“Respondent”) filed a Motion for Summary Judgment, along with a Return and Memorandum (“Motion”). ECF Nos. 34, 35. The Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the dismissal procedures and the possible consequences if he failed to adequately respond to Respondent's Motion. ECF No. 37. Petitioner filed an affidavit, which the Court has construed as his Response in Opposition. ECF No. 43. The matter is ripe for review.
Petitioner purported to file his Petition pursuant to 28 U.S.C. § 2241. However, within his Petition, he challenges his state court convictions, arguing he is entitled to habeas relief because of ineffective assistance of counsel, prosecutorial misconduct, lack of subject matter jurisdiction, and a violation of his South Carolina Constitutional rights. Accordingly, the Court construes the petition as one under § 2254. See In re Wright, 826 F.3d 774, 783 (4th Cir. 2016) (“Therefore, when a prisoner being held ‘pursuant to the judgment of a State court' files a habeas petition claiming the execution of his sentence is in violation of the Constitution, laws, or treaties of the United States, the more specific § 2254 ‘and all associated statutory requirements' shall apply, regardless of the statutory label the prisoner chooses to give his petition.” (citation omitted)).
Petitioner has also filed a Motion for Discovery. ECF No. 24. Because the undersigned recommends the Petition be dismissed, this Motion for Discovery should be denied as moot.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the assigned district judge referred the Motion to the undersigned for a Report and Recommendation.
For the reasons that follow, the Court recommends that Respondent's Motion be granted and the Petition be dismissed with prejudice.
I. BACKGROUND
The procedural history as described by Respondent has not been disputed by Petitioner in his Response and is set forth as follows. See ECF No. 34 at 1-3. In December of 1997, Petitioner was indicted by the Richland County Grand Jury for the offenses of two counts of murder, two counts of kidnapping, and criminal sexual conduct in the first degree. ECF No. 34 at 1; ECF No. 34-1. After indictment, the State decided to notice Petitioner of its intent to seek the death penalty. ECF No. 34 at 1.
The case was called for trial on October 19, 1998. Petitioner was ultimately found guilty; however, the jury decided not to impose a sentence of death. ECF No. 34 at 1. On October 30, 1998, the trial judge imposed consecutive life sentences for each count of murder and a thirty-year sentence for the criminal sexual conduct (to be served consecutive to the life sentences). ECF No. 34 at 1-2. Petitioner timely appealed.
On November 5, 2001, the Supreme Court of South Carolina affirmed in part and reversed in part. State v. Knoten, 555 S.E.2d 391, 400 (S.C. 2001). Specifically, the Supreme Court affirmed the murder conviction as to one of the victims, but reversed the other murder conviction as to the other victim. See id. (finding the trial court erred in refusing Petitioner's request to instruct the jury on the crime of voluntary manslaughter). The remittitur was issued on December 12, 2001.
On February 18, 2003, Petitioner filed his initial application for post-conviction relief (“PCR”). ECF No. 34 at 2. On June 14, 2004, all interested parties appeared before a PCR Judge for a hearing regarding the Petitioner's PCR application. ECF No. 34 at 2. On June 14, 2004, the PCR Judge filed an order of dismissal. ECF No. 34 at 2.
On June 18, 2004, Petitioner filed a petition for a writ of certiorari before the Supreme Court of South Carolina. ECF No. 34 at 2. The Supreme Court dismissed that petition on April 19, 2006. ECF No. 34 at 2. The remittitur was filed by the Richland County Clerk of Court on May 5, 2006. ECF No. 34 at 2
On August 29, 2018, Petitioner filed a second PCR application. ECF No. 34-2; ECF No. 34-3 at 1; ECF No. 34-4 at 1. A second PCR Judge filed an order of dismissal on July 30, 2021. ECF No. 34-4. On November 10, 2021, the Supreme Court of South Carolina dismissed the petition for a writ of certiorari. ECF No. 34-5. The remittitur was filed by the Richland County Clerk of Court on December 2, 2021. ECF No. 34-5.
Respondent incorrectly states Petitioner filed his second PCR Application on April 29, 2018. ECF No. 34 at 2.
On January 3, 2023, Petitioner filed this Habeas Petition. ECF No. 1. Petitioner presents the following grounds for relief:
GROUND ONE: Ineffective assistance of counsel - counsel's error was both deficient and entailed substantial prejudice to the defense.
GROUND TWO: Prosecutorial misconduct and fraud upon the court.
GROUND THREE: Richland County lacked subject matter jurisdiction - 1993 Act No. 184 and 1996 Act No. 317 we[re] not sealed with the Great Seal of the State of South Carolina.
GROUND FOUR: My South Carolina Constitutional rights have been violated -There is an absence of available state corrective process.ECF No. 1 at 6-7.
II. STANDARDS OF REVIEW
A. Summary Judgment Standard
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, 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, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Id. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “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.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
B. Federal Habeas Review under 28 U.S.C. § 2254
Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, in considering Petitioner's claims, the Court's review is limited by the deferential standard of review set forth in 28 U.S.C. § 2254(d). See Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under § 2254(d),
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the State court proceeding.28 U.S.C. § 2254(d); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (explaining federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law,” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding”). A state court's decision is contrary to clearly established federal law if that court “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Evans, 220 F.3d at 312 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision unreasonably applies clearly established federal law if the state court “identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quoting Williams, 529 U.S. at 413).
Because “review under § 2254(d)(1) focuses on what a state court knew and did,” this Court measures the reasonableness of the state court's decision based on the information in the record before the state court. Valentino v. Clarke, 972 F.3d 560, 575 (4th Cir. 2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). “Likewise, § 2254(d)(2) provides for a limited review of factual determinations in light of the evidence presented in the State court proceeding[;] [thus,] [t]his backward-looking language similarly requires an examination of the state-court decision at the time it was made.” Id. (citation and internal quotation marks omitted).
Accordingly, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 410. Further, factual findings “made by a State court shall be presumed to be correct,” and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
III. DISCUSSION
Respondent argues that the Petition is untimely, having been filed past the applicable statute of limitations deadline. The Court agrees that the Petition is untimely, which is dispositive of the action.
A. Statute of Limitations in habeas cases
Because Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of this claim is governed by 28 U.S.C. § 2254(d), as amended. See Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). The AEDPA provides that “[a] 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). Subsection (d) of the statute provides that 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.28 U.S.C. § 2244(d)(1)(A)-(D).
The statute further provides that “[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.” 28 U.S.C. § 2244(d)(2) (emphasis added). Subsections (d)(1) and (d)(2) carry differing requirements for the tolling of the statutory time.
1. Subsection (d)(1)
Subsection (d)(1)(A) specifies the one-year statute of limitations begins to run on the date the petitioner's conviction becomes final-i.e. at the conclusion of direct review-not after collateral review is completed. See 28 U.S.C. § 2244(d)(1)(A); Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000). In South Carolina, a defendant must file a notice of appeal within ten days of his conviction. Rule 203(b)(2), SCACR. Thus, if a defendant does not file a direct appeal, his conviction becomes final ten days after the adjudication of guilt, and the one-year statute of limitations begins to run.
If a defendant files a direct appeal and his conviction is affirmed, the timing of when the conviction becomes final depends on whether the defendant pursued his direct appeal to the highest state court. Compare Harris, 209 F.3d at 328 n.1 (noting conviction becomes final on the expiration of the ninety-day period to seek review by the United States Supreme Court from a state's highest court), with Gonzalez v. Thaler, 565 U.S. 134, 154 (2012) (holding, “with respect to a state prisoner who does not seek review in a State's highest court, the judgment becomes ‘final' under § 2244(d)(1)(A) when the time for seeking such review expires”). Thus, if a defendant pursues his direct appeal all the way to the Supreme Court of South Carolina-the highest state court-his conviction becomes “final” ninety days after the final ruling of that Court. See Harris, 209 F.3d at 328 n.1.
However, if a defendant pursues his direct appeal to the South Carolina Court of Appeals- the intermediate state appellate court-and forgoes petitioning the Supreme Court of South Carolina for a writ of certiorari after the Court of Appeals has affirmed his conviction, then his conviction becomes “final” either fifteen or thirty days after the ruling of the Court of Appeals. Specifically, a defendant's conviction becomes final fifteen days later if he fails to properly file a petition for rehearing in the Court of Appeals. See, e.g., Grant v. Bush, No. 6:14-CV-01313-DCN, 2015 WL 4747104, at *5 (D.S.C. Aug. 11, 2015) (“In light of his failure to file a timely petition for rehearing, Grant's state court convictions became final on February 27, 2009, fifteen days after the South Carolina Court of Appeals issued its opinion in Grant's direct appeal.” (emphasis added)); see also Rule 221(a), SCACR (“Petitions for rehearing must be actually received by the appellate court no later than fifteen (15) days after the filing of the opinion, order, judgment, or decree of the court.”). Conversely, a defendant's conviction becomes final thirty days later if he properly files a petition for rehearing in the Court of Appeals, but nevertheless fails to petition the Supreme Court of South Carolina. See Gonzalez, 565 U.S. at 154; Rule 242(c), SCACR (“A petition for writ of certiorari shall be served on opposing counsel and filed with proof of service with the Clerk of the Court of Appeals and the Clerk of the Supreme Court within thirty (30) days after the petition for rehearing or reinstatement is finally decided by the Court of Appeals.” (emphasis added)).
This is because a petition for rehearing is a prerequisite for petitioning the Supreme Court of South Carolina. See Rule 242(c), SCACR (establishing that an appellant cannot petition the Supreme Court of South Carolina for review of the Court of Appeals' decision unless a petition for rehearing is filed in and acted on by the Court of Appeals); Gonzalez, 565 U.S. at 154 (holding, “with respect to a state prisoner who does not seek review in a State's highest court, the judgment becomes ‘final' under § 2244(d)(1)(A) when the time for seeking such review expires”).
2. Subsection (d)(2)
On the other hand, subsection (d)(2) of § 2244 concerns collateral review. It provides that the statute of limitations is tolled during the period of “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 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).
A state collateral proceeding must be “properly filed” for the statutory tolling provisions of 28 U.S.C. § 2244(d)(2) to apply. “[A]n application is ‘properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.” Artuz v. Bennett, 531 U.S. 4, 8 (2000) (emphasis in original) (footnote omitted). “When a postconviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (quoting Carey v. Saffold, 536 U.S. 214, 226 (2002)).
B. Petitioner did not timely file his Petition.
Respondent argues the Petition was untimely. Although some of Respondent's calculations are incorrect, the Court ultimately agrees that the Petition is untimely.
Under § 2244(d), the State bears the burden of asserting the statute of limitations as an affirmative defense. Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002). Petitioner then bears the burden of establishing that his petition is timely or that he is entitled to the benefit of statutory tolling or the doctrine of equitable tolling. See 28 U.S.C. § 2244(d)(1)(B)-(D); Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003). Generally, federal courts use Fed.R.Civ.P. 6(a) in computing periods of time under 28 U.S.C. § 2244(d). Hernandez v. Caldwell, 225 F.3d 435, 439 (4th Cir. 2000).
Here, Petitioner was found guilty and was sentenced on October 30, 1998. Petitioner appealed all the way up to the Supreme Court of South Carolina. On November 5, 2001, the Supreme Court of South Carolina affirmed in part and reversed in part Petitioner's convictions. See State v. Knoten, 555 S.E.2d 391 (S.C. 2001). Thus, Petitioner's convictions became final ninety days after that final ruling of that court. See Harris, 209 F.3d at 328 n.1.
As a result, the AEDPA one year statute of limitations began to run ninety days later, on February 4, 2002. See Fed.R.Civ.P. 6(a)(1)(C) (noting if the last day of the period is a Sunday, the period continues to run until the end of the next day). Petitioner had one year, until February 4, 2003, to file his federal habeas Petition. See Hernandez, 225 F.3d at 439.
Respondent appears to use the remittitur date of December 12, 2001, as the date Petitioner's convictions became final, with little explanation as to the calculation. ECF No. 34 at 5. However, that time frame does not use the date of the entry of the judgment, nor include the ninety days Petitioner had to seek certiorari with the Supreme Court of the United States. See Harris, 209 F.3d at 328 n.1 (noting conviction becomes final on the expiration of the ninety-day period to seek review by the United States Supreme Court from a state's highest court); Sup.Ct. R. 13(1) (noting a petition for a writ of certiorari with the Supreme Court of the United States “is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment” (emphasis added)); McElrath v. Warden, McCormick Corr. Inst., No. 5:17-01569-JMC-KDW, 2018 WL 2344629, at *7 (D.S.C. Feb. 16, 2018) (declining to use the remittitur date and noting “[a]t that point, Petitioner had 90 days to petition for a writ of certiorari to the U.S. Supreme Court . . . Petitioner did not seek a writ of certiorari, so his convictions became final [90 days later]”), report and recommendation adopted, No. CV 5:17-01569-JMC, 2018 WL 2331948 (D.S.C. May 23, 2018). Respondent, perhaps, confused § 2244(d)(1) and (d)(2). See Gonzalez, 565 U.S. at 152 n.10 (distinguishing between the provisions of § 2244(d)(2) and (d)(1)); Beatty v. Rawski, 97 F.Supp.3d 768, 779-80 (D.S.C. 2015) (holding, for purposes of tolling the statute of limitations under § 2244(d)(2), the date the remittitur was filed in the state circuit court is proper in light of Gonzalez)
To toll the time to file his federal habeas Petition under 28 U.S.C. § 2244(d)(2), Petitioner would have needed to file his first state PCR action within the above limitations period. Petitioner did not do so, as he filed his first state PCR action on February 18, 2003. Thus, while normally the filing of a state PCR action would extend the time for filing a federal habeas petition, it does not do so here. For the same reason, Petitioner's second state PCR action, filed on August 28, 2018, does not do so either. See Tascoe v. Warden, Lee Corr. Inst., No. 2:17-CV-235-CMC-MGB, 2017 WL 9250347, at *4 (D.S.C. Apr. 28, 2017) (“In other words, [Petitioner's] second PCR application did not restart the clock.”), report and recommendation adopted, No. CV 2:17-235-CMC, 2017 WL 2240675 (D.S.C. May 23, 2017).
Respondent's calculations on this point are also incorrect. Without any legal citation, Respondent appears to suggest the filing of Petitioner's first state PCR action tolled the limitations period, regardless that it was outside the one-year limitations period. ECF No. 34 at 5. Thus, Respondent maintains that “[i]n order for the Petitioner to fall within the one-year limitations period this petition should have been filed on or before May 5, 2007,” which was when the first state PCR action concluded. ECF No. 34 at 6. However, Petitioner can only use § 2244(d)(2) to toll the limitation period if there is any limitation period left to toll. Put simply, if the limitations period has already expired, § 2244(d)(2) does not restart the clock. See Grant v. Bush, No. 6:14-CV-01313-DCN, 2015 WL 4747104, at *5 (D.S.C. Aug. 11, 2015) (“While [Petitioner] argues that the instant action was timely filed as the state post-conviction relief action tolled the limitations period, such tolling suspends, not restarts, the limitations period under AEDPA.” (emphasis in original)); see also Ballard v. Cuccinelli, No. 3:10CV524, 2011 WL 1827866, at *2 (E.D. Va. May 12, 2011) (“[A] state post conviction motion filed after expiration of the limitations period cannot toll the period, because there is no period remaining to be tolled.” (citation and internal quotation marks omitted)).
Ultimately, Petitioner did not file his federal Petition until January 1, 2023, nearly twenty years after the February 18, 2003, deadline. ECF No. 1. Consequently, because Petitioner filed outside the one-year statute of limitations, this action is untimely under 28 U.S.C. § 2244(d).
C. Petitioner is not entitled to equitable tolling.
In 2000, the Fourth Circuit held the AEDPA's statute of limitations is not jurisdictional, but subject to the doctrine of equitable tolling. Harris, 209 F.3d at 329-30. In 2010, the United States Supreme Court squarely considered this issue and held § 2244 “is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010).
To benefit from the doctrine of 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.” Id. at 649 (quoting Pace, 544 U.S. at 418)); Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (holding that, for equitable tolling to apply, a petitioner must show that there were “(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time”).
Here, even construing Petitioner's Response liberally, Petitioner does not make any argument addressing equitable tolling. Indeed, Petitioner's Response is a single page that appears to be an affidavit from his mother, who provides testimony about the underlying crime. See ECF No. 43. Thus, Petitioner has failed to show extraordinary circumstances prevented him from filing anything for approximately twenty years. See Johnson v. United States, 544 U.S. 295, 311 (2005) (“Johnson has offered no explanation for this delay, beyond observing that he was acting pro se and lacked the sophistication to understand the procedures. But we have never accepted pro se representation alone or procedural ignorance as an excuse for prolonged inattention when a statute's clear policy calls for promptness, and on this record we think Johnson fell far short of reasonable diligence in challenging the state conviction.”); see Harris, 209 F.3d at 330 (noting a petitioner has burden of showing equitable tolling). Accordingly, the Petition should be dismissed on statute of limitations grounds.
The filing was untimely by approximately twenty years, and Petitioner has not presented facts sufficient to support an argument that the limitations period should be equitably tolled. See Grant v. Warden, No. CV JKB-20-2447, 2021 WL 2117160, at *4 (D. Md. May 25, 2021) (noting the court “cannot find that [Petitioner] acted with reasonable diligence” sufficient for equitable tolling, where the delay in filing was over four years later). Therefore, the Court recommends that Respondent's Motion be granted, and the Petition be dismissed with prejudice.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 35) be GRANTED and that the Petition be DISMISSED with prejudice. It is further RECOMMENDED that Petitioner's Motion for Discovery (ECF No. 24) be denied as MOOT.
The parties are directed to the next page for their rights to file objections to this recommendation.
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 835
Charleston, South Carolina 29402
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).