Opinion
C. A. 6:22-cv-01927-MGL-KFM
09-08-2022
Otis Robinson, Petitioner, v. Warden Broad River Correctional Institution, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge.
The petitioner, proceeding pro se and in forma pauperis, brings this action pursuant to 28 U.S.C. § 2254 for habeas relief. 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.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons set forth below, it is recommended that the petitioner's § 2254 petition be summarily dismissed.
ALLEGATIONS
Petitioner's Convictions and Sentence
On October 29, 2013, in the Charleston County General Sessions Court, the petitioner was found guilty of first degree burglary and sentenced to life in prison without parole. See Charleston County Public Index, https://publicindex.sccourts.org/ Charleston/PublicIndex/PISearch.aspx (enter the petitioner's name and M611652) (last visited September 7, 2022). The petitioner appealed, and the South Carolina Court of Appeals dismissed his appeal pursuant to Anders v. California, 386 U.S. 738 (1967). See State of S.C. v. Robinson, C/A No. 2013-002392, 2016 WL 3208928 (S.C. Ct. App. June 8, 2016).
The court takes judicial notice of the records in the petitioner's criminal case in the Charleston County General Sessions Court, as well as the petitioner's post-conviction relief action in the Charleston County Court of Common Pleas. 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.'”).
The petitioner filed his first post conviction relief (“PCR”) action in the Charleston County Court of Common Pleas on October 13, 2016. See Charleston County Public Index (enter the petitioner's name and 2016-CP-10-05451) (last visited September 7, 2022). In his PCR, the petitioner asserted several grounds for relief, including ineffective assistance of counsel (“IAC”) for failing to challenge the chain of custody of evidence, denial of due process due to false testimony, and prosecutorial misconduct for failing to challenge a prior conviction. Id. The PCR was denied on the merits in an order entered April 5, 2019. Id. The petitioner appealed, the PCR appeal was transferred to the South Carolina Court of Appeals, and his petition for a writ of certiorari was denied on June 23, 2021. Robinson v. State of S.C., C/A No. 2019-000740 (S.C. Ct. App.) (remittitur entered in the Charleston County Court of Common Pleas on July 16, 2021).
Petitioner's Present Action
In the instant matter, the petitioner's first ground for relief is IAC for failing to address due process violation, prosecutorial misconduct, lack of jurisdiction, and Brady violations (doc. 1-2 at 5-7). Ground two for relief is that his PCR attorney was ineffective because he promised to get the petitioner the relief he requested (id. at 7-8). Ground three for relief is that he is being held in violation of the law because one of his charges was dismissed at the preliminary hearing and then the solicitor got a direct indictment (id. at 8-10). Ground four for relief is IAC because trial counsel's license was suspended for using drugs and PCR counsel promised him the requested relief (id. at 10-11). As for timeliness, the petitioner asserts that his petition should be seen as timely because he has been on lockdown since June 2021 without access to the courts or the law library (id. at 13-14). For relief, the petitioner seeks to have his prior burglary conviction vacated and to be re-sentenced (id. at 15).
STANDARD OF REVIEW
The undersigned has reviewed the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
Because the petitioner filed his petition after the effective date of the AEDPA, review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997). Under the AEDPA, a petition for writ of habeas corpus must be filed within one year of “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 review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” Id. § 2244(d)(2) (emphasis added). State collateral review tolls the one-year statute of limitations under Section 2244(d)(1)(A) for properly filed pleadings. Artuz v. Bennett, 531 U.S. 4, 8 (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).
As noted, after a jury trial, the petitioner was found guilty of first degree burglary and sentenced on October 29, 2013. See Charleston County Public Index, (enter the petitioner's name and M611652) (last visited September 7, 2022). The petitioner filed an appeal to the Court of Appeals of South Carolina, but his conviction and sentence were affirmed on June 8, 2016. See State of S.C. v. Robinson, C/A No. 2013-002392, 2016 WL 3208928 (S.C. Ct. App. June 8, 2016). Thus, the petitioner's conviction and sentence became final on June 23, 2016. As noted, the Court of Appeals of South Carolina issued the opinion in the direct appeal on June 8, 2016. The petitioner had fifteen days in which to file a petition for rehearing. Rule 221(a), SCACR. He did not file such a petition. Filing a petition for rehearing and obtaining a ruling on the petition are conditions precedent to filing a petition for writ of certiorari in the Supreme Court of South Carolina. Rule 242(c), SCACR. 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 or 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.”); Muqit v. McFadden, C/A No. 8:14-3555-RBH, 2016 WL 4613398, at *4 (D.S.C. Sept. 6, 2016) (“Because Petitioner did not file a petition for rehearing or seek discretionary review in the South Carolina Supreme Court, his convictions became final fifteen days later . . . .”). Moreover, the petitioner's failure to seek review in the Supreme Court of South Carolina prevented him from meeting the jurisdictional requirements to seek review in the Supreme Court of the United States. Gonzalez, 565 U.S. at 154 (finding the 90-day period in which to seek review by the Supreme Court is not applied where habeas petition failed to appeal to the state's highest court); see Hammond v. Hagan, C/A No. 4:07-1081-JFA-TER, 2 WL 2922860, at *3 (D.S.C. July 24, 2008) (petitioner who fails to seek review in state supreme court “is not entitled to an additional tolled time period of 90 days in which to seek certiorari review from the United States Supreme Court”). Thus, the petitioner's conviction and sentence became final on June 23, 2016, and his time for filing his federal habeas petition began to run thereafter.
The petitioner filed his first PCR action on October 13, 2016. See Charleston County Public Index (enter the petitioner's name and 2016-CP-10-05451) (last visited September 7, 2022). At that point, 112 days of untolled time had lapsed, leaving 253 days in the federal limitations period. The petitioner's time limit remained tolled until the PCR appeal concluded. Using the date most favorable to the petitioner, the tolled period for the PCR action concluded on July 16, 2021, when the Charleston County Clerk of Court filed the remittitur in the PCR appeal. Charleston County Public Index (enter the petitioner's name and 2016-CP-10-05451) (last visited September 7, 2022). 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))). The petitioner's time began running again at the conclusion of his state PCR action on July 16, 2021, and expired 253 days later on March 26, 2022.
Construing the filing date in the petitioner's favor, the petitioner filed this federal habeas petition on June 15, 2022, the date he delivered a motion regarding his petition to the prison mail room for filing with this court (docs. 1; 1-1). 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). Therefore, a total of 446 days of untolled time lapsed between the petitioner's convictions becoming final and the filing of his Section 2254 petition. As the petitioner exceeded the statute of limitations by more than 80 days, it appears his petition is untimely. In light of the untimely nature of the petitioner's petition, on August 19, 2022, the undersigned issued an order to show cause providing the petitioner with the opportunity to provide a factual explanation to show cause why his petition should not be dismissed based on the application of the one-year limitation period established by 28 U.S.C. § 2244(d) (doc. 23). The petitioner filed his response to the order on September 6, 2022 (doc. 28).
To avoid application of Section 2244(d) regarding the timeliness of the instant federal habeas petition, the petitioner must show that the one-year limitations period should be equitably tolled under applicable federal law. See Holland v. Florida, 560 U.S. 631,649 (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, 544 U.S. at 418 (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). The Fourth Circuit is clear that equitable tolling is only appropriate where a petitioner shows: “(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). Here, the petitioner's petition and his response to the order to show cause assert that he is entitled to equitable tolling based upon his placement in the lockdown dorm, which limited his access to the law library and to the mailroom to make copies (docs. 1-2 at 13-14; 28 at 1-2; 28-1); and because he is actually innocent based upon a miscarriage of justice (docs. 1-2 at 13-14; 28 at 2).
The petitioner has failed to meet the standard for equitable tolling based upon limited access to the law library and to the mailroom to make copies. Indeed, routine aspects of prison life, such as “restricted access to the law library . . . do not qualify as extraordinary circumstances” for equitable tolling purposes. See Jones v. South Carolina, C/A No. 4:05-cv-02424-CMC-TER, 2006 WL 1876543, at *3 (D.S.C. June 30, 2006); see also Booker v. Clarke, C/A No. 3:21-cv-00212 (DJN), 2022 WL 464554, at *3 (E.D. Va. Feb. 15, 2022) (explaining that routine aspects of prison life, such as restricted access to the law library do not qualify as extraordinary circumstances to justify equitable tolling). Indeed, the petitioner has not alleged that he worked on his petition between June 2021 and June 2022, the period of time he contends he was prevented from accessing the law library. Moreover, he has not alleged how time in the law library would have facilitated the timely filing of his § 2254 petition - and he has failed to allege that restriction from the law library prevented him from conducting any particular research or denied him access to any specific case or information.
Further, the petitioner has not demonstrated diligence in pursuing his rights. Indeed, the petitioner waited until February 24, 2022, almost a year after the PCR appeal was denied, to submit a letter to the South Carolina Supreme Court seeking additional time to file a federal habeas petition, recognizing that his AEDPA deadline was approaching. Robinson v. State of S.C., C/A No. 2019-000740 (S.C. Ct. App.). The South Carolina Supreme Court responded to the petitioner's letter on March 1, 2022, but the petitioner delayed another three months before sending any correspondence to this court (doc. 1). See Pace, 544 U.S. at 419 (noting that equitable tolling is not applicable when a petitioner has failed to diligently exercise his rights). Additionally, the petitioner's letter, dated February 24, 2022, was submitted prior to expiration of the AEDPA deadline; thus, his assertion that he was unable to file any legal documents based upon the inability to make copies or access the law library is belied by this correspondence. In light of the foregoing, the petitioner's bare assertions - that he was prevented from filing a timely petition because he was on lockdown and could not access the law library or make copies - do not demonstrate extraordinary circumstances that prevented him from filing on time. As such, in light of the foregoing, the undersigned finds that the petitioner has failed to show that he is entitled to equitable tolling based upon access to the law library and to the mailroom to make copies.
Additionally, to the extent the petitioner contends that he is actually innocent and is thus entitled to an exception to the statute of limitations, the Supreme Court has stated that to “invoke the miscarriage of justice exception to AEDPA's statute of limitations, . . . a petitioner ‘must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.'” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); see Schlup, 513 U.S. at 324 (a petitioner must “support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial”). “Moreover, a petitioner must show factual innocence and not merely legal insufficiency.” Hutley v. Warden, Lieber Corr. Inst., C/A No. 9:17-cv-2962-TMC, 2018 WL 3303283, at *3 (D.S.C. July 5, 2018) (citing Bousley v. United States, 523 U.S. 614, 623 (1998)). The petitioner has failed to point to any new evidence supporting his claim of actual innocence (see generally doc. 1-2). Indeed, his response to the order to show cause rehashes the same arguments and evidence considered by the jury, but asserts that there was a legal insufficiency to the evidence to support their verdict because the dwelling was an abandoned house (see doc. 28 at 2). However, the petitioner's assertion of actual innocence fails because he has not identified “new reliable evidence” - instead, he argues legal insufficiency of the evidence. See Hutley, 2018 WL 3303283, at *3 (noting that actual innocence claims require the identification of new reliable evidence that “was not presented at trial” (internal quotation marks omitted) (quoting Schlup, 513 U.S. at 324)).
The petitioner's reliance on alleged additional crime scene photographs also does not meet the actual innocence standard. The plaintiff alleges that he was just provided these photographs by his attorney and that not all of them were presented during his trial, which constitutes new evidence of his innocence (doc. 28-1). However, the Supreme Court of the United States has noted that new reliable evidence of innocence is a “rarity.” Calderon v. Thompson, 523 U.S. 538, 559 (1998). Indeed, the standard set by the Supreme Court is that a “petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Schlup, 513 U.S. at 327. Here, the alleged “new” crime scene photographs do not meet that standard. In asserting actual innocence, the petitioner argues that the photographs paint a different picture of the scene than that shown by the photographs submitted to the jury (doc. 28-1). However, the petitioner's own filings indicate that the photographs were in trial counsel's possession during the trial, meaning that this evidence is not “new” (id.). As such, the petitioner's claim of actual innocence does not approach the standard necessary to overcome the statute of limitations. Based on the foregoing, the petitioner's petition is not entitled to equitable tolling; thus, it is untimely and should be dismissed.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2254 petition be dismissed as time-barred. The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Room 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).