Opinion
CIVIL ACTION NO. 9:19-227-MGL-BM
10-02-2019
ROBERT SINGLETARY, #189516, Petitioner, v. WARDEN MICHAEL STEPHON, BROAD RIVER CORRECTIONAL, Respondent.
REPORT AND RECOMMENDATION
Petitioner, an inmate with the South Carolina Department of Corrections, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was filed pro se on January 23, 2019.
Since there is no delivery date to the prison mail room shown on the envelope, the undersigned has used the notary date on the Petition which states that it was placed in the prison mail on January 23, 2019 (the undersigned also notes that it was actually filed by the Clerk of Court's Office on January 25, 2019 which would make the January 23, 2019 date appear consistent). Cf Houston v. Lack, 487 U.S. 266, 270-276 (1988).
The Respondent filed a return and motion for summary judgment on May 16, 2019. As the Petitioner is proceeding pro se, a Roseboro order was filed on May 17, 2019, advising Petitioner that he had thirty-four (34) days to file any material in opposition to the motion for summary judgment. Petitioner was specifically advised that if he failed to respond adequately, the motion for summary judgment may be granted, thereby ending his case. Thereafter, on May 28, 2019, Petitioner filed supplemental documentation in support of his Petition. He then filed a memorandum in opposition to summary judgment on May 30, 2019.
One day later, on May 17, 2019, the Petitioner filed a motion for an evidentiary hearing. On May 24, 2019, the Respondent filed a memorandum in opposition to the Petitioner's motion for an evidentiary hearing, and the Petitioner filed a reply memorandum on June 6, 2019. However, prior to the filing of Petitioner's reply, the Court denied Petitioner's motion for an evidentiary hearing on May 31, 2019. On August 28, 2019, the Fourth Circuit Court of Appeals dismissed Petitioner's appeal of that decision due to his failure to prosecute his appeal.
Petitioner's memorandum in opposition to summary judgment primarily discusses his request for an evidentiary hearing.
This matter is now before the Court for disposition.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(c)and (e), D.S.C. The Respondent has filed a motion for summary judgment. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.
Procedural History
Petitioner was indicted in Florence County in September 2009 for lewd act on a minor and criminal sexual conduct with a minor, first degree [Indictment No. 09-GS-21-1350]. (R.pp. 328-329). Petitioner was represented by Vick Meetz, Esquire. After a trial by jury on June 21-23, 2010, Petitioner was convicted as charged and sentenced to concurrent sentences of thirty (30) years imprisonment for criminal sexual conduct with a minor, first degree, and fifteen (15) years imprisonment, for lewd act on a minor. (R.pp. 1-245).
Petitioner filed a timely direct appeal on which he was represented by Breen Richard Stevens, Esquire. Petitioner raised the following issue in his direct appeal:
Whether the trial court erred in failing to grant a mistrial after the State solicited testimony from an expert witness which the court ruled was inadmissible?See Court Docket No. 15-2, p. 4. On October 31, 2012, the South Carolina Court of Appeals denied the appeal in its entirety. State v. Singletary, 2012-UP-589 (S.C.Ct.App. filed October 31, 2012)(unpublished). (R.pp. 332-333). The remittitur was issued on November 16, 2012. See Court Docket No. 15-4.
On April 30, 2013, Petitioner filed an application for post-conviction relief ("APCR") in state circuit court. Singletary v. State of South Carolina, No. 2013-CP-21-1159. (R.pp. 247-253). Petitioner raised the following grounds in his APCR:
6th Amend-Coleman vs. Thompson 51 US 722 . . . Strickland v. State - Martinez v. Ryan - Strickland v. Washingto[n](R.p. 249). Petitioner was represented in his APCR by Jonathan Waller, Esquire, and an evidentiary hearing was held on Petitioner's application on October 9, 2014. (R.pp. 275-317). After the hearing, both parties filed post-hearing memoranda. (R.pp. 254-261, 268-274). By order dated March 25, 2015, and filed April 1, 2015, the PCR judge denied Petitioner's requested relief in its entirety. (R.pp. 318-327).
a. The right to a fair trial - ambiguous sentence
b. The right to present everdince [sic] on my behalf - ineffective coun
c. The right for me to have witnesses on my behalf
d. Stence [sic] of 0-15 the judge gave me 15 yrs. Stence[sic] of 0-30 the judge gave me 30 yrs. Stencing [sic] was extreme.
Petitioner appealed the denial of his APCR. Petitioner's PCR appellate counsel, LaNelle Durant of the South Carolina Commission on Indigent Defense, raised the following issue in this appeal:
Did the PCR court err in not finding trial counsel ineffective for not objecting to Debbie Elliott being qualified as an expert in child abuse assessment when there was not sufficient showing of her individual reliability as there was no evidence her conclusions from the interview were accurate, and her qualification as an expert allowed her to give her improper opinion recommendations that Singletary should have no contact with this child or any child, and that Petitioner should have a
complete sex offender assessment which was highly prejudicial to Petitioner Singletary and irrelevant to the jury's finding of guilt or innocence?See Court Docket No. 15-5, p. 2. The South Carolina Supreme Court denied the petition for writ of certiorari on March 24, 2017. See Court Docket No. 15-7. The remittitur was issued on April 11, 2017, and sent to the Florence County Clerk of Court on April 13, 2017. See Court Docket No. 15-8.
Petitioner then filed this federal Petition. In his Petition for writ of habeas corpus filed in this United States District Court, Petitioner raises the following grounds:
Ground One: 6th Amendment. The Right to a Fair and impartial TrialSee Petition, pp. 6, 8-9, 11.
Ground Two: Right of Accused to Compulsory Process
Ground Three: Judge error
Ground Four: Excess sentence
Discussion
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, Fed.R.Civ.P; see Habeas Corpus Rules 5-7, 11. Further, while the federal court is charged with liberally construing pleadings filed by a pro se litigant to allow for the development of a potentially meritorious case; See Cruz v. Beto, 405 U.S. 319 (1972), and Haines v. Kerner, 404 U.S. 519 (1972); 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, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990).
Here, Respondent argues in his motion, inter alia, that the entire Petition is subject to dismissal because Petitioner failed to file his application for a writ of habeas corpus in federal court within one (1) year following the exhaustion of his state court remedies. This limitations period is part of the AEDPA, and runs, under 28 U.S.C. § 2244(d)(1), 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;Furthermore, § 2244(d)(2) provides that,
(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.
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.
This Petition falls under § 2244(d)(1)(A). Petitioner's conviction became final on November 15, 2012, fifteen (15) days after the dismissal of his direct appeal on October 31, 2012, when he did not move for rehearing. See SCACR 221(a); see also Gonzales v. Thaler, 132 S.Ct. 641, 656 (2012) [". . . 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 . . . ."]; Muqit v. McFadden, No. 14-3555, 2016 WL 4613398, at * 4 (D.S.C. Sept. 6, 2016)[finding state conviction was final fifteen (15) days after dismissal of direct appeal by the South Carolina Court of Appeals because petitioner did not file a motion for rehearing or seek discretionary review in the state Supreme Court]; Stutts v. Stevenson, No 11-191, 2012 WL 4479126 at * 3 (D.S.C. Sept. 28, 2012)(citing Gonzales v. Thaler, supra)[clarifying that for prisoners who do not seek review from the Supreme Court, the limitations period begins to run on the date the state court issues its opinion and not the date the mandate is issued]. Therefore, by the time Petitioner filed his first APCR on April 30, 2013, one hundred and sixty-six (166) days of non-tolled time had passed from when his conviction became final. The time limitations period was then tolled during the pendency of Petitioner's APCR, until the Remittitur was filed on April 13, 2017. Petitioner then had until October 30, 2017 (365 days - 166 days = 199 days) to timely file his federal habeas petition. However, Petitioner did not file this federal habeas petition until January 23, 2019.
In order to pursue review with the South Carolina Supreme Court by petitioning for a writ of certiorari, Petitioner was required to first petition the Court of Appeals for rehearing. See Rule 242(c), 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."].
Since Petitioner did not seek review of the decision of the Court of Appeals from the South Carolina Supreme Court, he is not entitled to a tolling of the ninety (90) days to seek certiorari review from the United States Supreme Court. See Pfeil v. Everett, 9 Fed.Appx. 973, 977 (10th Cir. 2001); Reddock v. Ozmit, No. 09-204, 2010 WL 568870 at **3-5 (D.S.C. Feb. 11, 2010); Anderson v. Warden of Evans Correctional Institution, No. 10-987, 2010 WL 5691646 (D.S.C. Sept. 7, 2010), adopted by, 2011 WL 380651 (D.S.C. Feb. 3, 2011); Martino v. Cartledge, No. 09-527, 2010 WL 56093 (D.S.C. Jan 4, 2010); Hammond v. Hagan, No. 07-1081, 2008 WL 2922860 (D.S.C. July 24, 2008); see also Wise v. South Carolina Dep't of Corrections, 642 S.E.2d 551 (S.C. 2007).
Since the 199th day fell on a Sunday, October 29, 2017, Petitioner had until the following Monday, October 30, 2017 to timely file his federal habeas petition.
It is noted that Petitioner apparently attempted to file a state habeas petition on or about June 21, 2017. However, Petitioner's filing of this state habeas petition did not toll the running of his limitations period. The state court denied Petitioner's in forma pauperis request for this petition on June 28, 2017. See https:///publicindex.sccourts.org/Florence/ PublicIndex/Case Detail. See also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.1989) [a federal court may take notice of proceedings in other courts if those proceedings have a direct relation to matters at issue]; Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir.1970) [the court may take judicial notice of its own records]; Court Docket No. 1-1, p. 3. Therefore, Petitioner's state habeas was not a properly filed action since the filing fee was not paid and his request for in forma pauperis was denied. Jefferson v. Warden of Lee Corr. Inst., No. 13-593, 2014 WL 1094436, at *12 (D.S.C. Mar. 18, 2014)[Finding petitioner's subsequent PCR and two state habeas petitions did not toll the statute, because they were not properly filed](citing Williams v. Lewis, No. 17-301, 2017 WL 3172732, at *7-8 (D.S.C. June 13, 2017), report and recommendation adopted sub nom. Williams v. Dunlap, No. 17-301, 2017 WL 3142540 (D.S.C. July 25, 2017))[An application is considered "properly filed" if it conforms to state rules concerning "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."](quoting Artuz v. Bennett, 531 U.S. 4, 8 (2000). In any event, that action was only pending for seven (7) days, so it would not render this federal action timely filed even if the time it was pending could be counted as tolled time.
When the pre-PCR time period (166) days and the post-PCR period prior to Petitioner's filing of his federal habeas petition (450) days are added, a total of six hundred and sixteen (616) days of non-tolled time passed from when Petitioner's period of limitations started to run on November 15, 2012, and the filing of this federal petition, well outside of the one (1) year federal statute of limitations. Hence, Petitioner failed to timely file this federal petition, and he is therefore barred from seeking federal habeas relief. Artuz v. Bennett, 531 U.S. 4 (2000) [while state collateral review tolls the one-year statute of limitations under § 2244(d)(A), it does not establish a right to file within one year after completion of collateral review]; Harris v. Hutchinson, 209 F.3d 325, 327-328 (4th Cir. 2000).
Finally, Petitioner also asserts that he is entitled to equitable tolling with respect to his claims. The United States Supreme Court has held that the federal one year statute of limitations can be subject to equitable tolling in appropriate cases. Holland v. Florida, 130 S.Ct. 2549, 2552-2554, 2560-2562 (2010); see also Rouse v. Lee, 314 F.3d 698, 704 (4th Cir. 2003)(citing Harris, 209 F.3d at 330). However, circumstances will rarely warrant equitable tolling, and it is the Petitioner who carries the burden of showing an entitlement 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 case, 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; 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, 544 U.S. at 418).
Here, Petitioner contends that he was not aware that his state habeas petition was dismissed until November 15, 2018, when the Florence County Clerk of Court wrote him a letter after he inquired about the status of his case. See Court Docket No. 1-1, pp. 2-3. However, when Petitioner received this notice on November 15, 2018, he still took no action for an additional sixty-nine (69) days (over two months) prior to filing his federal habeas action. As such, even if the Court accepted this argument, and further assuming his state habeas petition would otherwise even qualify for tolling purposes, this additional delay shows that Petitioner did not act with diligence throughout the period he seeks to toll. See Smith v. McGinnis, 208 F.3d 13, 17-18 (2nd Cir. 2000)[AEDPA's statute of limitations may be equitably tolled only in rare and exceptional circumstances and only "if party seeking equitable tolling [has] acted with reasonable diligence throughout the period he seeks to toll."]. Therefore, Petitioner has not met his burden of showing that "extraordinary circumstances" prevented him from timely filing this federal Petition, or that he could not have filed a timely petition. Harris, 209 F.3d at 330 [Petitioner has burden of showing entitlement to equitable tolling]. Accordingly, Petitioner is not entitled to any equitable relief, and he is therefore barred from seeking federal habeas relief. See Pearson, 130 F.Supp.2d at 744-745; Calderon v. U.S. District Court of the Central District of California, 127 F.3d 782, 785-787 (9th Cir. 1997), cert. denied, 118 S.Ct. 1395 (1998), overruled on other grounds in later appeal, 163 F.3d 530 (9th Cir. 1998), cert. denied, 119 S.Ct. 1377 (1999).
It is noted that this letter states that Petitioner's paperwork had been sent back to him when his Petition was denied.
Conclusion
Based on the foregoing, it is recommended that the Respondent's motion for summary judgment be granted, and that the Petition be dismissed, with prejudice.
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge October 2, 2019
Charleston, South Carolina
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).