Opinion
C/A No. 8:19-cv-03244-HMH-JDA
12-11-2019
Rudis Arnold Ventura, Petitioner, v. Warden Perry Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Rudis Arnold Ventura ("Petitioner"), proceeding pro se and in forma pauperis, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Petitioner is a state prisoner in the custody of the South Carolina Department of Corrections and is currently incarcerated at the Perry Correctional Institution. 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 Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Judge. For the reasons that follow, the Petition is subject to summary dismissal as time barred.
BACKGROUND
Petitioner makes the following allegations in his Petition. [Doc. 1.] He was convicted and sentenced in the Spartanburg County Court of General Sessions at case numbers 2009-GS-42-2370, accessory after the fact; 2009-GS-42-2371, accessory after the fact; and 2010-GS-42-3025, first-degree burglary. [Id. at 1.] After pleading guilty, he was sentenced initially on May 23, 2012, to life without parole for the first-degree burglary charge, but, after counsel filed a motion to reconsider, the sentencing judge modified the sentence on January 28, 2013. [Id. at 1, 8.] As such, he was sentenced to an aggregate term of 40 years as follows: 15 years for accessory after the fact at case number 09-GS-42-2370, 15 years for accessory after the fact at case number 2009-GS-42-2371, and 40 years for the first-degree burglary charge at case number 2010-GS-42-3025. [Id. at 1.] Petitioner did not appeal his conviction or sentence. [Id. at 2.]
The Court takes judicial notice of the records in Petitioner's state criminal case and post-conviction relief actions. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining 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.'").
Petitioner filed a post-conviction relief ("PCR") application in the Spartanburg County Court of Common Pleas on September 19, 2013, at case number 2013-CP-42-4095, raising grounds of ineffective assistance of counsel and an involuntary guilty plea. [Id. at 3.] His PCR application was denied on March 8, 2016, and an order of dismissal was filed on March 14, 2016. [Id.] Petitioner appealed the denial of his PCR application at case number 2016-000775, but certiorari was denied. [Id. at 4.]
In the present Petition, Petitioner raises the following grounds for relief. First, Petitioner contends that plea counsel was ineffective in advising him to cooperate with the State without first obtaining a written or oral plea agreement granting Petitioner immunity or providing an agreed-upon sentence. [Id. at 5.] Second, Petitioner contends that plea counsel was ineffective in advising Petitioner that, if he pled guilty, he would be sentenced to time served for his cooperation with the State, thus rendering the guilty plea involuntary. [Id. at 7.] Third, Petitioner contends that the sentence of forty years "is cruel and unusual punishment in violation of the 8th Amendment to the U.S. Constitution." [Id. at 8.] Petitioner also presents a summary of facts and arguments to support his grounds for relief. [Id. at 15-16.] For his relief, Petitioner seeks a new trial or an evidentiary hearing. [Id. at 17.]
With regard to the timeliness of the Petition, Petitioner explains that he is "unsure of the timeliness" as he is pro se, of Spanish decent, and with limited to no law skills. [Id. at 13.] Petitioner contends that his PCR counsel was retained for the federal habeas action, but counsel did not follow through, so Petitioner decided to file the habeas petition himself. [Id. at 13-14.] Petitioner contends that, if the Petition is deemed untimely, then equitable tolling should apply as the result of his counsel's failure to timely file the Petition. [Id. at 14.]
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in the above-captioned case. The review was conducted pursuant to the procedural provisions of 28 U.S.C. § 1915, the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub. L. 104-132, 110 Stat. 1214, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Further, this Court is charged with screening Petitioner's lawsuit to determine if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts (2012). Pursuant to this rule, a district court is "authorized to dismiss summarily any habeas petition that appears legally insufficient on its face." McFarland v. Scott, 512 U.S. 849, 856 (1994).
Because Petitioner is a pro se litigant, his 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, 93-94 (2007) (per curiam). However, even under this less stringent standard, the Petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
DISCUSSION
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Here, as stated, Petitioner challenges his state conviction, seeking habeas relief under 28 U.S.C. § 2254. Nevertheless, after a review of the Petition and the record in this case, the Petition appears to be subject to dismissal because it is time barred.
A federal court may raise the issue of the timeliness of a habeas petition sua sponte. Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002). As the Fourth Circuit has noted,
A district court has the discretion, but not the obligation, to consider on its own motion the timeliness of a habeas petition under AEDPA if (1) the parties have fair notice and an opportunity to be heard; (2) the state has not waived the limitations defense; (3) the "petitioner is not significantly prejudiced by the delayed focus on the limitation issue"; and (4) the court "determine[s] whether the interests of justice would be better served by addressing the merits or by dismissing the petition as time barred."Gray v. Branker, 529 F.3d 220, 241 (4th Cir. 2008) (alteration in original) (quoting Day v. McDonough, 547 U.S. 198, 209-11 (2006)). Once a court has raised the issue, it "must accord the parties fair notice and an opportunity to present their positions" on the issue. Day, 547 U.S. at 210.
Petitioner's right to file objections to this Report and Recommendation constitutes Petitioner's opportunity to object to a dismissal of this Petition based on the statute of limitations. The undersigned concludes that because Petitioner has addressed the timeliness issue in his Petition, he has already had an opportunity to explain his position prior to dismissal; however, this Report and Recommendation is further notice and opportunity for Petitioner to explain his position on the timeliness of the Petition. See Hill, 277 F.3d at 707; Bilal v. North Carolina, 287 F. App'x 241, 248-49 (4th Cir. 2008).
Under the AEDPA, a petitioner has one year to file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1) ("A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court."). However, the statute tolls the limitations period 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." Id. § 2244(d)(2). While the limitations period is tolled during the pendency of a properly filed collateral attack on the subject conviction, the one-year statute of limitations begins to run on the date a petitioner's conviction becomes final, not at the end of collateral review. Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000).
Here, it appears from the face of the Petition that the action is time barred. Petitioner was convicted and sentenced on May 23, 2012. Upon a motion for reconsideration, the sentencing court reduced Petitioner's sentence on January 29, 2013, to a term of 40 years. Petitioner did not appeal his conviction or sentence.
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. Crawley v. Catoe, 257 F.3d 395, 398 (4th Cir. 2001). Here, Petitioner's conviction became final on February 8, 2013, ten days after the modified sentence was entered, and the AEDPA's one-year statute of limitations began to run on that date.
Petitioner then filed a PCR application in the Spartanburg County Court of Common Pleas on September 19, 2013. When Petitioner filed his state PCR action on September 19, 2013, 223 days of the one-year limitations period had already lapsed. Thus, Petitioner had 142 days remaining within which to timely file a federal habeas petition following the conclusion of the state PCR proceedings.
As noted, the statute of limitations is tolled during the period that "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, 257 F.3d at 399.
Here, the PCR Court dismissed Petitioner's PCR application on March 8, 2016, and the order of dismissal was filed on March 14, 2016. Petitioner appealed; however, the South Carolina Court of Appeals denied the petition for a writ of certiorari on January 23, 2018, a remittitur was issued on February 8, 2018, and both documents were filed on the PCR docket on February 16, 2018. See Ventura v. State of South Carolina, No. 2013-cp- 42-04095, available at Spartanburg County Seventh Judicial Circuit Public Index, https://publicindex.sccourts.org/Spartanburg/PublicIndex/PISearch.aspx (search by case number "2013cp4204095") (last visited Dec. 9, 2019). Thus, the one-year statute of limitations began to run again on February 16, 2018. See Beatty v. Rawski, 97 F. Supp. 3d 768, 774 (D.S.C. 2015) ("South Carolina law states that the final disposition of an appeal does not occur until after the remittitur is filed in the circuit court."). As noted, Petitioner had 142 days remaining, or until July 8, 2018, to file a federal habeas action.
Because July 8, 2018, was a Sunday, Petitioner would have had until the following day, July 9, 2018, to file his habeas action. See Fed. R. App. P. 26(a)(3) (explaining that where filing period ends on weekend, relevant period is extended to next business day).
Petitioner filed the instant habeas action on November 12, 2019. [Doc. 1-1 at 1 (envelope stamped as received in the Perry Correctional Institution Mail Room on November 12, 2019)]; see Houston v. Lack, 487 U.S. 266, 270-76 (1988) (explaining that a prisoner's pleading is filed at moment of delivery to prison authorities for forwarding to District Court). As such, Petitioner filed the instant Petition 491 days—more than sixteen months—after the expiration of the statute of limitations. Accordingly, the undersigned concludes based on the face of the pleadings that Petitioner's § 2254 Petition is barred by the applicable one-year limitations period. The undersigned further finds that the interests of justice would not be better served by addressing the merits of the Petition.
As stated, Petitioner contends that the one-year statute of limitations should be tolled in this case. [Doc. 1 at 14.] Specifically, Petitioner asserts that he is "unsure of the timeliness" of the Petition, that he is proceeding pro se, that he is of "[S]panish decent," and that he has "limited to no law skills or interpretations." [Id. at 13-14.] Petitioner further asserts that he retained Attorney Bradley Bennett, who was his PCR counsel, for the federal habeas proceedings. [Id.] Petitioner claims that, after not hearing from his attorney, he decided to file the habeas action himself. [Id. at 13-14.] Petitioner asserts that he is entitled to equitable tolling because of counsel's failure to timely file a petition and because of the "magnitude of the constitutional claims presented and the resulting manifest miscarriage of justice resulting from the cruel and unusual punishment." [Id. at 14.]
Petitioner's arguments are without merit. "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 v. DiGuglielmo, 544 U.S. 408, 418 (2005). Petitioner has failed to meet either of these two requirements. The crux of Petitioner's argument in support of equitable tolling is that he was waiting for his PCR counsel to file his federal habeas action, but then decided to commence the action himself when PCR counsel failed to act. Petitioner advances no other facts showing that he was diligent to pursue his rights or that some extraordinary circumstance stood in his way of filing the habeas action himself. The law is well settled in the Fourth Circuit that the mistake or error of counsel does not serve as a ground for equitable tolling. Rouse v. Lee, 339 F.3d 238, 248 (4th Cir. 2003); see also Lawrence v. Fla., 549 U.S. 327, 336-37 (2007) ("Attorney miscalculation [of applicable statute of limitations] is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel."). Even accepting Petitioner's contention that he believed his PCR counsel would file his habeas action in this federal court, the undersigned finds that he has not demonstrated that he pursued his rights diligently as he waited more than sixteen months, without any valid justification, to commence this action. See United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (explaining that, "even in the case of an unrepresented prisoner, ignorance of the law is not a basis for equitable tolling"); Harris, 209 F.3d at 333-34. Simply put, "[P]etitioner's lack of diligence precludes equity's operation." Pace, 544 U.S. at 419.
Accordingly, the undersigned concludes that Petitioner has failed to show that he is entitled to equitable tolling in this case. In light of all the foregoing, the undersigned finds that the Petition should be dismissed as barred by the applicable statute of limitations.
RECOMMENDATION
Accordingly, it is recommended that this action be dismissed without requiring the Respondent to file an answer or return because the Petition is untimely under the one-year limitations provision of the AEDPA, 28 U.S.C. § 2244(d).
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge December 11, 2019
Greenville, South Carolina
Petitioner's attention is directed to the important notice on the next page.
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
300 East Washington Street, Room 239
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).