Opinion
2:22-cv-3272-TMC-MGB
08-17-2023
Anthony Maurice Lounds, Petitioner, v. Warden Charles Williams, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Anthony Maurice Lounds, a state prisoner proceeding pro se, seeks habeas corpus under 28 U.S.C. § 2254. (Dkt. Nos. 1, 5-1.) This matter is before the Court on the Respondent's Motion for Summary Judgment. (Dkt. No. 15.) Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review the Petition and submit findings and recommendations to the United States District Judge. For the reasons set forth below, the undersigned RECOMMENDS that Respondent's Motion for Summary Judgment (Dkt. No. 15) be GRANTED.
BACKGROUND
Petitioner is currently housed in the Perry Correctional Institution of the South Carolina Department of Corrections. In November of 2010, a Greenville County Grand Jury indicted Petitioner for armed robbery and possession of a weapon during the commission of a violent crime. (Dkt. No. 14 at 1; Dkt. No. 14-1 at 8.)Petitioner was represented by Scott D. Robinson on these charges. (Dkt. No. 14 at 1; Dkt. No. 14-1 at 3.)
This Report and Recommendation reflects the pagination assigned by the Court's automated docketing system.
Petitioner's case proceeded to a jury trial before the Honorable C. Victor Pyle, Jr., which began on July 12, 2011. (Dkt. No. 14-1 at 3-240.) On July 13, 2011, the trial concluded, and the jury convicted Petitioner as charged. (Id. at 232.) Judge Pyle sentenced Petitioner to concurrent terms of life imprisonment without parole for armed robbery, and five years for possession of a weapon during the commission of a violent crime. (Id. at 238.)
Represented by Susan B. Hackett as appellate counsel, Petitioner directly appealed his conviction and sentence. (Id. at 241.) In his direct appeal brief, Petitioner raised two issues for review:
(1) Whether the trial judge erred when he did not recuse himself, upon motion by Appellant, when he earlier presided over Applicant's trial, which resulted in a life without parole sentence, and which was subsequently overturned by the South Carolina Supreme Court and when he had granted Appellant's motion for recusal in a prior hearing?
(2) Whether the trial court judge erred when he did not grant appellant's motion for a mistrial when a juror, after having already been seated, then disclosed that she had been the victim of a violent crime?(Id. at 241-52.)
The South Carolina Court of Appeals denied and dismissed Petitioner's direct appeal, affirming Petitioner's convictions and sentence on June 26, 2013. (Id. at 270-72.) The remittitur was issued and filed on July 17, 2013. (Id. at 273.)
On August 2, 2013, Petitioner filed a pro se application for post-conviction relief (“PCR”). (Dkt. No. 14-2 at 1-7.) In this application, he raised the following grounds (verbatim):
Ineffective assistance of trial counsel:
(a) Counsel failed to function as the state's adversary in any sense of the word.
(b) Counsel failed to call witnesses on my behalf which would have proven my innocence.
(c) Counsel failed to do the necessary factual investigation on my behalf.(Id. at 3.)
As support for these grounds of relief, Petitioner explained: “counsel neglected the necessary investigation and preparation of [his] case”; “counsel did not offer any defense to the court on [his] behalf”; “counsel failed to subject the prosecution's case to any adversarial testing”; “counsel failed to function as the counsel that the constitution's Sixth Amendment [g]uarantees.” (Id.)
Petitioner then filed a pro se amendment to his PCR application on September 17, 2013. (Id. at 9; Dkt. No. 14-4 at 1-2.) In this amendment, he raised the following additional grounds for relief:
1. Ineffective assistance of trial counsel:
a. Failed to “communicate with the Applicant to adequately prepare for life without parole trial.”
b. Failed to challenge the Applicant's arrest.
c. “[N]ever intended to offer any defense to the court on my behalf.”
d. Failed to “function as the [government's] adversary.
e. Failed to “conscientiously gather any information to protect my rights.”
f. Failed to “conscientiously discharge his professional responsibilities.”
g. Failed to “make proper [argument] concerning the seating of jury #40 peremptory challenge.”(Dkt. No. 14-2 at 9; Dkt. No. 14-4 at 1-2.)
On October 21, 2014, the Honorable Letitia H. Verdin, Circuit Court Judge, held an evidentiary hearing relating to Petitioner's first PCR application. (Dkt. No. 14-2 at 13-85.) Petitioner was represented by Mills Arial as his PCR counsel. (Id.) After hearing testimony from Petitioner, Petitioner's trial counsel, and several other witnesses, Judge Verdin took the matter under advisement. (Id.) In a written Order of Dismissal filed on December 19, 2014, Judge Verdin denied Petitioner's application and dismissed it with prejudice. (Id. at 92-101.) Petitioner appealed and filed a Petition for Writ of Certiorari on September 18, 2015. (Id. at 102-14.) The South Carolina Supreme Court denied the petition on October 20, 2016. (Id. at 127.) The remittitur was sent to the Greenville County Clerk of Court on November 7, 2016 and was filed on November 18, 2016. (Dkt. No. 14 at 5; Dkt. No. 14-2 at 128; Dkt. No. 14-5 at 1.)
While his appeal was pending, Petitioner filed a second PCR application. (Dkt. No. 14-6.)
This August 7, 2015 application raised the following grounds for relief (verbatim):
Ineffective assistance of trial counsel:
(a) Trial counsel failed to object to alternate juror deliberating while jury considered verdict. SEE ATTACHMENTS: Newly discovered evidence.
Newly Discovered Evidence:
(a) Trial transcript is incomplete, and could not have discovered issue without complete transcript received from former investigator or trial counsel.(Id. at 3, 5.) On October 13, 2015, Petitioner filed a “Notice and Motion to Amendment to PCR Application,” adding the following claim (verbatim):
Applicant's appellant counsel Ms. Franklin Best whom provided Applicant with incomplete transcript on November 22, 2011, ineffective for failing to check record, review record. Applicant was unaware his trial transcript was incomplete until June 9, 2015. Applicant received complete copy of trial transcript from investigator and notice thick-ness, compared the 2 transcripts together Applicant discovered transcript received from appellant counsel Franklin Best was missing 11 pages from the back of transcript. Applicant now amends to PCR appellant counsel Franklin Best ineffective assistance of appellant counsel.(Id. at 4.)
The State filed a return and motion to dismiss on February 24, 2016. (Dkt. No. 14-8 at 1 7.) In its motion, the State argued that Petitioner's second PCR application was barred by the PCR statute of limitations and was impermissibly successive. (Id.) The State further argued that Petitioner's after-discovered evidence claim lacked merit because his purported new evidence was not material to the issue of guilt and most likely would not have changed the outcome of his trial. (Id.)
On March 9, 2016, the PCR court filed a Conditional Order of Dismissal, explaining that the Court intended to summarily dismiss Petitioner's application unless Petitioner could show cause as to why the case should not be dismissed for the reasons set forth by the State. (Dkt. No. 14-9.) Petitioner responded to the Conditional Order on March 21, 2016. (Dkt. No. 14-10.) The PCR court found Petitioner's arguments unconvincing and entered a Final Order dismissing his second PCR application on September 26, 2016 for the reasons set forth in the Conditional Order of Dismissal. (Dkt. No. 14-11.)
On October 11, 2016, Petitioner appealed the PCR's court's Order. (Dkt. No. 14-12.) On October 13, 2016, the Clerk of Court for the South Carolina Supreme Court sent him a deficiency letter explaining that he must provide a written explanation as to why the PCR court's finding that his application was barred as successive and untimely was improper. (Dkt. No. 1413.) The letter further explained that he had ten (10) days to provide the written explanation. (Id.) Seven (7) days later, Petitioner filed “Petitioner's Explanation Requirement Following the Filing and Service of the Notice of Appeal Per Rule 243, SCACR.” (Dkt. No. 14-14.) Upon reviewing his explanation, the PCR court dismissed Petitioner's appeal because he had failed to provide an adequate explanation under the applicable rule. The remittitur was sent to the Greenville County Clerk of Court on November 15, 2016 and was filed on November 18, 2016. (Dkt. Nos. 14-16, 14-17.)
Around this same time, Petitioner filed a motion for “Relief from a Judgement or Order” pursuant to Rule 60(b) of the South Carolina Rules of Civil Procedure. (Dkt. No. 14-2 at 13055.) In this motion, Petitioner challenged the denial of his original PCR application which was filed on August 2, 2013. (Id.) The PCR court denied Petitioner's Rule 60(b) motion in a Form 4 Order completed on November 30, 2016 and filed on December 7, 2016. (Id. at 156-57.) On February 29, 2017, Petitioner appealed the decision. (Id. at 129.) On October 4, 2017, his appellate counsel, John H. Strom, filed a Johnson Petition for Writ of Certiorari. (Dkt. No. 1418.) The Johnson Petition raised the following issues:
Did the PCR court err in summarily dismissing Petitioner's Rule 60(b), SCRCP, motion for a new hearing based on after discovered evidence and extrinsic fraud where the State did not file a response and where the PCR court did not hold an evidentiary hearing or make specific findings of facts or conclusions of law in the order denying Petitioner's motion?(Id.) Petitioner filed a pro se response to the Johnson Petition on November 29, 2017. (Dkt. No. 14-19.) On May 3, 2018, the South Carolina Supreme Court denied certiorari. (Dkt. No. 14-20.) The remittitur was issued on May 21, 2018 and filed on May 23, 2018. (Dkt. No. 14-22.)
On February 18, 2019, Petitioner filed a third PCR application. (Dkt. No. 14-23.) In this application, he raised the following claims (verbatim):
(a) The State lacked subject-matter jurisdiction to convict the applicant.
(b) The State lacked jurisdiction to sentence applicant to a life sentence.
(c) The State engaged in outrageous government conduct to convict the applicant.(Id. at 3.) As support for these claims, Petitioner explained:
(a) The State failed to legally indict the applicant.
(b) The State failed to serve the applicant a “Notice” to seek his life-without-parole sentence.
(c) The State attempted to alter the date of applicant's indictment.(Id.)
On September 12, 2019, the State filed a return and motion to dismiss Petitioner's third PCR application. (Dkt. No. 14-24.) In its motion, the State again argued that Petitioner's application was barred by the PCR statute of limitations and was impermissibly successive to his previous PCR applications. (Id.) As with Petitioner's second PCR application, the PCR court filed a Conditional Order of Dismissal explaining that it would summarily dismiss Petitioner's application for the reasons set forth in the State's motion unless Petitioner could show cause as to why his case should not be dismissed. (Dkt. No. 14-25.)
Petitioner, represented by Susannah Ross as his PCR counsel, filed a response to the Conditional Order of Dismissal on October 7, 2019. (Dkt. No. 14-26.) After considering the arguments raised in Petitioner's response, the PCR court filed a Final Order of Dismissal on May 26, 2021, dismissing Petitioner's application with prejudice for the reasons set forth in the Conditional Order of Dismissal. (Dkt. No. 14-27.)
On June 4, 2021, Petitioner filed a Motion to Alter or Amend the PCR Court's Judgment pursuant to Rule 59(e) of the South Carolina Rules of Civil Procedure. (Dkt. No. 14-28.) The PCR court denied the motion in a Form 4 Order dated June 9, 2021. (Dkt. No. 14-29.) Petitioner timely appealed the PCR court's Order. (Dkt. No. 14-30.) Both Petitioner and his PCR counsel filed an explanation as required by Rule 243(c) of the South Carolina Appellate Court Rules. (Dkt. Nos. 14-31, 14-32.) However, the South Carolina Supreme Court dismissed Petitioner's appeal on October 12, 2021, explaining that he had “failed to show that there is an arguable basis for asserting the determination by the lower court was improper.” (Dkt. No. 14-33.) The PCR court sent the remittitur to the Greenville County Clerk of Court on October 29, 2021, and it was filed on November 22, 2021. (Dkt. No. 14-35.)
Petitioner's PCR counsel-Susannah Ross-also requested to be relieved as counsel. (Dkt. No. 14-31 at 2.)
PROCEDURAL HISTORY
Petitioner then filed his pro se habeas petition on September 26, 2022. (Dkt. No. 1.) In his Petition, he raises the following grounds for relief (verbatim):
Ground One: The State lacked subject matter jurisdiction to sentence applicant to LWOP due to unindicted offenses on the notice.
Supporting Facts: The Notice (17-25-45(H)) petitioner was served with included offenses that the petitioner was not indicted for nor convicted of. The indictment numbers on the notice reference one offense that was dismissed and a second offense that belongs to another defendant [See enclosed exhibit and memorandum of law, pg. 17-19] and pg. 20.
Ground Two: Trial counsel ineffective for failing to inform petitioner of the states extended plea offer.
Supporting Facts: Trial counsel presented false testimony at petitioner's first post conviction relief hearing, that a second chair solicitor had told him that there was no plea offer in the case; but when petitioner's PCR counsel contacted the second chair solicitor, she was informed that it was not his case and he was not in a position to extend a plea offer as a second chair solicitor to the head solicitor. A plea offer does exist. (see attached pgs. 34-49).
Ground Three: The State lacked subject matter jurisdiction to convict petitioner due to an altered indictment; not legally indicted.
Supporting Facts: Petitioner was served a true billed indictment with a pre fixed docket number (see attached indictment pg. 50). Contrary to this the body of the indictment includes a 10/23/10 date. The 2009 date has been crossed out on the face of the indictment and wrote in its place is 2010; which is obviously disputed by the 2009 pre-fixed docket number.(Dkt. No. 5-1 at 5-8.)
After requesting and receiving an extension of time, Respondent filed a Return and Motion for Summary Judgment on February 6, 2023. (Dkt. Nos. 14, 15.) Petitioner filed a Response to the Motion for Summary Judgment on March 6, 2023. (Dkt. No. 21.) Respondent declined to reply by the March 13, 2023 deadline. (Id.) Accordingly, the motion before the Court has been fully briefed and is ripe for habeas review.
LEGAL STANDARD
I. Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Rule 12, Rules Governing § 2254 Cases (stating courts may apply in habeas cases any of the Federal Rules of Civil Procedure to the extent they are not inconsistent with statutes or the § 2254 rules). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). In ruling on a motion for summary judgment, “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.” The News & Observer Publ'g Co., 597 F.3d at 576 (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
II. Habeas Standard of Review
Habeas corpus in federal court exists to “guard against extreme malfunctions in the state criminal justice systems.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (citation and internal quotation marks omitted). Federal habeas is neither an alternative to state-court relief nor an additional chance to appeal erroneous state-court rulings. See id. That preference for, and deference to, state courts is borne out in the various constraints placed on federal courts. See Shoop v. Hill, 139 S.Ct. 504, 506 (2019) (per curiam) (stating § 2254 “imposes important limitations on the power of federal courts to overturn the judgments of state courts in criminal cases”); see also Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (stating § 2254 “reflect[s] a presumption that state courts know and follow the law” (citation and internal quotation marks omitted)).
Since the Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication:
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 evidence presented at the State court proceeding.28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 398 (2000). “[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. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington, 562 U.S. at 86 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Federal courts must also defer to state courts' factual determinations, which are presumed correct until the prisoner rebuts that presumption with clear and convincing evidence. § 2254(e)(1).
In addition, before state prisoners may try to clear those high hurdles, two rules steer them to first pursue all relief available in the state courts. See § 2254(b)(1). The first, known as exhaustion of remedies, requires a prisoner to present his claims to the highest state court with jurisdiction to decide them. Stewart v. Warden of Lieber Corr. Inst., 701 F.Supp.2d 785, 790 (D.S.C. 2010). A federal court cannot grant a prisoner's habeas corpus petition until he exhausts his state-court remedies. § 2254(b)(1), (c). The second rule, called procedural default, comes into play when a prisoner failed to present a claim to the state courts at the appropriate time and has no means of doing so now. Stewart, 701 F.Supp.2d at 790. Federal courts may not consider a procedurally defaulted claim unless the prisoner shows either that he has cause for defaulting and that the alleged violation of federal law prejudiced him or that not addressing the claim would be a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In considering whether Petitioner should receive habeas relief under these standards, the undersigned has carefully considered the record before the Court.
DISCUSSION
Respondent argues for summary judgment on the sole basis that the Petition is barred by the one-year statute of limitations imposed by the AEDPA. (See generally Dkt. No. 14.) More specifically, Respondent contends that the Petition was not timely filed, and Petitioner is not entitled to equitable tolling. (See generally id.) For the reasons set forth below, the undersigned agrees and therefore RECOMMENDS that Respondent's Motion for Summary Judgment (Dkt. No. 15) be GRANTED.
I. Legal Standard
Pursuant to the AEDPA, a person “in custody pursuant to the judgment of a State court” and who seeks federal habeas relief is subject to a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The one-year period to file a § 2254 petition commences upon the latest of the following dates:
(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.§ 2244(d)(1)(A)-(D). Here, the AEDPA's one-year statute of limitations began running at the “conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Petitioner's judgment of conviction therefore became final “when his time for seeking review with the State's highest court expired.” Gonzalez v. Thaler, 132 S.Ct. 641, 654 (2012) (clarifying the Court's prior cases concerning 28 U.S.C. § 2244(d)(1)(A)). The one-year period to file a § 2254 petition, however, is tolled 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.” 28 U.S.C. § 2244(d)(2).
Even if the limitations period is not tolled under the statute, a § 2254 petition may nevertheless be considered timely if the petitioner can demonstrate that he is entitled to equitable tolling of the limitations period. The Supreme Court recognized that the limitations period may be equitably tolled if the petitioner shows (1) he has been diligently pursuing his rights and (2) some extraordinary circumstance stood in his way, preventing him from timely filing his habeas petition. Holland v. Florida, 560 U.S. 631, 649 (2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Therefore, “specific circumstances . . . could warrant special treatment in an appropriate case.” Id. at 650. The Fourth Circuit has nevertheless cautioned that the application of equitable tolling should “be guarded and infrequent,” and “reserved for 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 v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).
II. Analysis
Here, the undersigned recommends granting Respondent's Motion for Summary Judgment because the instant Petition is barred by the statute of limitations. Petitioner did not timely file this Petition within the one-year limitations period outlined in § 2244(d)(1)(A), and he is not entitled to equitable tolling.
A. Timeliness
Petitioner's convictions and sentence were entered on July 13, 2011. (Dkt. No. 14-1 at 3240.) Petitioner then perfected a direct appeal of his convictions and sentence. (Id. at 241.) The South Carolina Court of Appeals denied his appeal and affirmed his convictions and sentence in a written Order filed on June 26, 2013. (Id. at 270-72.) Petitioner's next step in this process would have been to petition the Court of Appeals for a rehearing so that he could then petition the South Carolina Supreme Court for a writ of certiorari. See Rule 242, SCACR (“A decision of the Court of Appeals is not final for the purpose of review by the Supreme Court until the petition for rehearing or reinstatement has been acted on by the Court of Appeals.”). Petitioner had fifteen (15) days to petition for a rehearing; however, he declined to do so. See 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.”). Thus, his convictions and sentence became final fifteen (15) days after the Court of Appeals denied his appeal-July 11, 2013.
Petitioner properly filed his first PCR application on August 2, 2013, tolling the statute of limitations. (Dkt. No. 14-2 at 1-7.) Prior to that date, just over twenty (20) days had elapsed against the statute of limitations, leaving Petitioner approximately three hundred and forty-five (345) days within which he could timely file a federal habeas petition after the statute of limitations resumed.
On December 19, 2014, the PCR court denied Petitioner's application and dismissed it with prejudice. (Id. at 92-101.) Petitioner appealed and filed a Petition for Writ of Certiorari on September 18, 2015. (Id. at 102-14.) The South Carolina Supreme Court denied the petition on October 20, 2016. (Id. at 127.) The remittitur was sent to the Greenville County Clerk of Court on November 7, 2016 and was filed on November 18, 2016. (Dkt. No. 14 at 5; Dkt. No. 14-2 at 128; Dkt. No. 14-5 at 1.)
Accordingly, the statute of limitations remained tolled until, at the latest, November 18, 2016.Petitioner's statute of limitations began to run again on November 19, 2016. The one-year statute of limitations thus expired in October of 2017, approximately three hundred and forty- five (345) days after the remittitur was filed. However, Petitioner did not file the instant Petition until September 26, 2022-nearly five years later. (Dkt. No. 1.) The Petition is therefore untimely. (Dkt. No. 14 at 19.)
“South Carolina district courts have offered varied opinions on whether (1) the decision date, (2) the remittitur date, or (3) the date of receipt of the remittitur controls for purposes of calculating the statute of limitations. Brown v. Warden of Perry Corr. Inst., No. 5:22-cv-352-HMH-KDW, 2022 WL 17559867, at *5 (D.S.C. Nov. 21, 2022), adopted, 2022 WL 17555509 (D.S.C. Dec. 9, 2022) (referencing Smith v. Warden, Lieber Corr. Inst., No. 4:13-3090-BHH, 2014 WL 5503529, at *6 (D.S.C. Oct. 30, 2014); Johnson v. Warden, Lee Corr. Inst., No. 2:14-cv-0768 DCN, 2015 WL 1021115, at *9 (D.S.C. Mar. 9, 2015); Beatty v. Rawski, No. 1:13-cv-3045-MGL-SVH, 2015 WL 1518083, at *2-6 (D.S.C. Mar. 31, 2015)). Out of an abundance of caution, the undersigned has used the latest possible date here.
The undersigned notes that Petitioner's subsequent PCR applications did not toll the applicable statute of limitations because neither application was “properly filed” as is required by § 2244(d)(2). Indeed, Petitioner's second and third PCR applications were both dismissed as time-barred and successive. (Dkt. Nos. 14-9, 14-11, 14-15, 14-25, 14-27, 14-33.) It is well settled that a PCR application deemed successive or untimely is not “properly filed” for purposes of the AEDPA and does not toll the statute of limitations under § 2244(d)(2). See, e.g., McCray v. Warden at Lieber Corr. Inst., No. 1:22-cv-1204-TLW-SVH, 2022 WL 18958700, at *9 (D.S.C. Nov. 8, 2022) (“Petitioner's second PCR action did not toll the AEDPA one year statute of limitations because it was not a properly-filed state PCR action and has been conditionally dismissed as time-barred and improperly successive under state law.”), adopted, 2023 WL 1794571 (D.S.C. Feb. 7, 2023), motion for relief from judgment denied, 2023 WL 3204064 (D.S.C. May 1, 2023); Tascoe v. Warden, Lee Corr. Inst., No. 2:17-cv-235-CMC-MGB, 2017 WL 9250347, at *4 (D.S.C. Apr. 28, 2017) (explaining that “successive or untimely PCR applications are not ‘properly filed' for purposes of the AEDPA and do not toll any time under 28 U.S.C.A. § 2244(d)(2)”), adopted, 2017 WL 2240675 (D.S.C. May 23, 2017); James v. Cartledge, No. 1:15-cv-3112-TMC-SVH, 2016 WL 446626, at *7 (D.S.C. Jan. 8, 2016) (“Petitioner's filing of his successive PCR applications did not toll the statute of limitations.”), adopted, 2016 WL 429481 (D.S.C. Feb. 4, 2016); Burt v. Eagleton, No. 3:08-cv-3110-SB, 2009 WL 2997069, at *5 (D.S.C. Sept. 17, 2009) (noting that “a State PCR proceeding must be ‘properly filed' for the statutory tolling provisions of § 2244(d)(2) to apply” and that “‘[w]hen a post-conviction petition is untimely under state law, it is not considered properly filed.'”); Jones v. Warden, Lieber Corr. Inst., No. 8:06-cv-2545-GRA-BHH, 2007 WL 1574153, at *5 (D.S.C. May 29, 2007) (noting the filing of a second PCR, which was untimely under the state's statute of limitations, did not toll the federal statute of limitations because the state PCR action was not properly filed).
Respondent argues that Petitioner's Rule 60(b) motion also did not toll the statute of limitations because it was not a “‘properly filed' PCR Application” as required under § 2244(d)(2). (Dkt. No. 14 at 21.) Even assuming Petitioner's Rule 60(b) motion tolled the statute of limitations, the Petition would still be untimely. Petitioner filed his Rule 60(b) motion on November 17, 2016 and it was denied in a Form 4 Order filed on December 7, 2016. (Dkt. No. 14-2 at 130, 156-57.) Petitioner appealed this denial and filed a Johnson Petition for Writ of Certiorari, which was denied on May 3, 2018. (Dkt. Nos. 14-18, 14-20.) The Greenville County Clerk of Court filed the relevant remittitur on May 23, 2018. (Dkt. No. 14-22.) Thus, the statute of limitations would have remained tolled until, at the latest, May 23, 2018 and expired in May of 2019 (approximately three hundred and forty-five days later). Nonetheless, Petitioner did not file the instant Petition until September of 2022-two and a half years late.
B. Equitable Tolling
Equitable tolling cannot save the instant Petition. Indeed, Petitioner has provided the Court with no reason for his untimely filing. (See generally Dkt. No. 21.) Instead, he seems to claim that he is entitled to equitable tolling because of his successive PCR applications and state court filings. (See generally id.) As described above, he is not. See also McCray, 2023 WL 1794571, at *9 (“[Petitioner] further argues that his stream of filings in various South Carolina courts entitles him to equitable tolling [a]s analyzed by the magistrate judge, it does not.”).
What is more, the record before the Court does not justify a finding that Petitioner was diligent in pursuing his rights, nor that some extraordinary circumstance prevented him from timely filing this Petition. Because “equitable tolling is appropriate only when the government's wrongful conduct prevents a petitioner from filing a timely petition or when extraordinary circumstances beyond the petitioner's control make timely filing impossible,” Petitioner is not entitled to equitable tolling and his Petition should be dismissed. Bogan v. South Carolina, 204 Fed.Appx. 160, 160-61 (4th Cir. 2006).
Certificate of Appealability
If the Respondent's summary judgment motion is granted, the District Judge will need to decide whether to issue a certificate of appealability. See Rule 11(a), Rules Governing § 2254 Cases. A certificate may be issued only upon a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a petitioner's constitutional claims have been denied on the merits, the petitioner must demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation and quotation marks omitted). The undersigned sees no reason to grant a certificate of appealability and would, therefore, recommend denying the certificate of appealability.
CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that the Court GRANT Respondent's Motion for Summary Judgment (Dkt. No. 15). The undersigned further RECOMMENDS that the Court DISMISS this case with prejudice and DECLINE to issue a certificate of appealability.
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 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).