Opinion
C/A 21-3495-TLW-PJG
05-27-2022
Eric Wright, Petitioner, v. Donnie Stonebreaker, Jr., Respondent.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Petitioner Eric Wright, a state prisoner represented by counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the respondent's motion for summary judgment. (ECF No. 19.) Wright filed a response in opposition (ECF No. 22), and the respondent replied (ECF No. 23). Having carefully considered the parties' submissions and the record in this case, the court finds that Wright's Petition is barred by 28 U.S.C. § 2244(d) as untimely.
BACKGROUND
Wright was indicted in 2009 in Beaufort County for assault and battery with intent to kill (“ABWIK”) and possession of a weapon during a violent crime. (App. at 734-37, ECF No. 18-3 at 237-40.) Wright was represented by Ian C. Deysach, Esquire, and Gene G. Hood, Esquire, and on October 24-27, 2011 was tried before a jury and found guilty as charged. (App. at 1-553, ECF No. 18-1 at 4 through ECF No. 18-3 at 56.) The circuit court sentenced Wright to concurrent sentences of eighteen years' imprisonment for ABWIK and five years' imprisonment for possession of a weapon during the commission of a violent crime. (App. at 552, ECF No. 18-3 at 55.)
Wright timely appealed and was represented by David Alexander, Esquire, who filed a brief on Wright's behalf. (App. at 554-81, ECF No. 18-3 at 57-84.) On March 5, 2014, the South Carolina Court of Appeals affirmed Wright's conviction and sentence. (App. at 607-11, ECF No. 18-3 at 110-14.) Wright filed a petition for rehearing (App. at 612-16, ECF No. 18-3 at 115-19), which was denied on April 11, 2014. (App. at 618, ECF No. 18-3 at 121.) Wright filed a petition for a writ of certiorari on July 11, 2014 (App. at 619-35, ECF No. 18-3 at 122-38), which the South Carolina Supreme Court denied on November 20, 2014. (App. at 655, ECF No. 18-3 at 158.) The remittitur was issued on June 2, 2015. (App. at 656, ECF No. 18-3 at 159.)
Wright filed a pro se application for post-conviction relief (“PCR”) on August 17, 2015, which he later amended through counsel. (Wright v. State of South Carolina, 2015-CP-07-1982, App. at 657-64, ECF No. 18-3 at 160-67; App. at 672-73, ECF No. 18-3 at 175-76.) On October 12, 2017, the PCR court held an evidentiary hearing at which Wright testified and was represented by James K. Falk, Esquire. (App. at 674-722, ECF No. 18-3 at 177-225.) By order filed December 6, 2017, the PCR court dismissed Wright's PCR application with prejudice. (App. at 723-33, ECF No. 18-3 at 226-36.)
Counsel for Wright, Joanna K. Delany, Esquire, Appellate Defender for the South Carolina Commissioner on Indigent Defense, petitioned for a writ of certiorari on July 2, 2018. (ECF No. 18-4.) On September 25, 2020, the South Carolina Court of Appeals denied Wright's petition for a writ of certiorari. (ECF No. 18-7.) The remittitur was issued October 23, 2020 and filed with the Beaufort County Clerk of Court on October 27, 2020. (ECF No. 18-8.)
Wright, through counsel, filed his federal Petition for a writ of habeas corpus on October 25, 2021. (ECF No. 1.)
Because Wright was represented by counsel at the time his federal petition was filed, he is not entitled to the benefit of the holding in Houston v. Lack. See Houston v. Lack, 487 U.S. 266 (1988) (stating that a pro se prisoner's pleading is filed at the moment of delivery to prison authorities for forwarding to the district court); Stillman v. LaMarque, 319 F.3d 1199 (9th Cir. 2003) (holding that the “mailbox rule” is not available to a petitioner represented by counsel); Rutledge v. United States, 230 F.3d 1041 (7th Cir. 2000) (same); Turner v. Singletary, 46 F.Supp.2d 1238 (N.D. Fla. 1999) (same).
FEDERAL HABEAS ISSUES
Wright's federal Petition for a writ of habeas corpus, as amended, raises the following issues:
Ground One: The State committed misconduct by deliberately violating the court's pretrial order, depriving Petitioner of his right to due process.
Ground Two: The use of Alexus Green's identification of Petitioner violated Petitioner's right to due process.
Ground Three: Petitioner's trial counsel was ineffective for failing to object to Alexus Green's testimony referring to “Bo” and for failing to request the improper testimony be stricken before being replayed for the jury.
Ground Four: The Fourteenth Amendment's promise of equal protection was violated when the State struck jurors based on their gender.
Ground Five: The Fifth and Fourteenth Amendments' guarantee of due process was violated when the court excused the jury foreperson without a proper reason.
Ground Six: The Petitioner's Sixth Amendment right to trial by an impartial jury was violated when the court excused the jury foreman without a proper reason.(Am. Pet., ECF No. 5.)
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). 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). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly 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.” Id. at 248. The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322.
B. Statute of Limitations
The respondent argues that Wright's Petition is untimely under the one-year statutory deadline set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The one-year time period runs from the latest 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); see Gonzalez v. Thaler, 565 U.S. 134 (2012). Because Wright filed a direct appeal, his conviction became final on February 18, 2015-the expiration of the time in which Wright could have timely filed a petition for a writ of certiorari with the United States Supreme Court. See Gonzalez, 565 U.S. at 150; 28 U.S.C. § 1257 (“Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari ....”); U.S. Sup. Ct. R. 13 (stating that the time period for a petition for a writ of certiorari is 90 days from date of entry of the decision or judgment of a state court of last resort, or 90 days from the date of denial or entry of judgement on a petition for rehearing). Accordingly, the limitations period began to run on February 19, 2015, and expired February 18, 2016, unless the period was at any time tolled for any properly filed state PCR application. 28 U.S.C. § 2244(d)(2); see also Hernandez v. Caldwell, 225 F.3d 435, 438-39 (4th Cir. 2000) (applying the anniversary date method in calculating the one-year limitation period in § 2244 and concluding that “the actual count on the limitations period began on April 25, 1996, and ended on April 24, 1997, excluding any time tolled”).
Wright filed his state PCR application on August 17, 2015. At that point, 179 days of non-tolled time had accrued since the period of limitations began to run. The period of limitations was tolled during the pendency of the PCR action until October 23, 2020, when the South Carolina Court of Appeals issued the remittitur from its order denying Wright's petition for a writ of certiorari. Accordingly, Wright had until April 27, 2021 to file a timely federal habeas petition.
The court has used the date that the remittitur was issued. See Gonzalez, 565 U.S. at 152 n.10 (distinguishing between the provisions of § 2244(d)(2) and (d)(1)); see also Rule 221(b), SCACR. However, out of an abundance of caution, even considering the date that the remittitur was filed with the Beaufort County Clerk's office, Wright's Petition was still untimely filed. See Beatty v. Rawski, 97 F.Supp.3d 768, 772-76 (D.S.C. 2015) (tolling the statutory deadline until the remittitur is filed in the county clerk's office).
Wright's federal Petition was filed on October 25, 2021-over five months after the expiration of the statute of limitations.
C. Wright's Arguments
Counsel for Wright responds in opposition to the respondent's motion for summary judgment, but his response focuses primarily on the grounds raised in his habeas petition. (Petr.'s Resp. Opp'n Summ. J., ECF No. 22.) In addressing the respondent's argument that the petition is untimely, counsel argues that Wright is entitled to equitable tolling because, since Wright was represented by counsel, Wright “played no role in calculating or determining the appropriate filing window. Thus the calculation of such timeline was clearly beyond his control, and any alleged failure to abide by the applicable deadline should not be construed against the Petitioner.” (Id. at 12-13.)
To avoid application of the statute of limitations to the instant federal habeas corpus Petition, Wright must show that the one-year limitations period should be equitably tolled under applicable federal law. See Holland v. Florida, 560 U.S. 631 (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 v. DiGuglielmo, 544 U.S. 408, 418 (2005); 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.” Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003) (en banc) (internal quotation marks and citation omitted); see also United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). Thus, to be entitled to equitable tolling, an otherwise time-barred petitioner must present: “(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time.” Rouse, 339 F.3d at 246.
On this record, Wright has not established grounds for equitable tolling and has utterly failed to show that he has been diligently pursuing his rights. See Harris, 209 F.3d at 330 (“Under long-established principles, petitioner's lack of diligence precludes equity's operation.”); Pace, 544 U.S. at 419 (denying equitable tolling to a habeas petitioner who waited years to file his PCR petition and months after his PCR trial to seek relief in federal court). As noted above, Wright's federal habeas petition was filed by counsel. The court observes that attorney misconduct beyond a garden variety claim of attorney negligence may present a basis for equitable tolling. See Holland, 560 U.S. at 651-52. However, the allegations in this case do not support a finding of “egregious” misconduct by counsel sufficient to create an extraordinary circumstance that warrants equitable tolling. See Holland, 560 U.S. at 652 (finding that “a garden variety claim of excusable neglect, such as a simple miscalculation that leads a lawyer to miss a filing deadline, does not warrant equitable tolling”) (internal quotations and citations omitted); Rouse, 339 F.3d at 248-50 (“[A]ttorney error is not an extraordinary circumstance.”); Harris, 209 F.3d at 331 (“[A] mistake by a party's counsel in interpreting a statute of limitations does not present the extraordinary circumstance beyond the party's control where equity should step in to give the party the benefit of his erroneous understanding.”); Jones v. South Carolina, C/A No. 4:05-2424-CMC-TER, 2006 WL 1876543, *3 (D.S.C. June 30, 2006) (“Other courts addressing equitable tolling have found that ‘extraordinary circumstances' are not: having an inadequate law library, attorney error, claims of actual innocence, reliance on other inmates' advice, ignorance of the AEDPA filing deadline, or even (in some instances) petitioner illness.”).
RECOMMENDATION
Based upon the foregoing, the court finds that Wright has failed to present grounds that would entitle him to equitable tolling. The court therefore recommends that the respondent's motion for summary judgment (ECF No. 19) be granted and Wright's Petition dismissed with prejudice as untimely.
The parties' 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
901 Richland Street
Columbia, South Carolina 29201
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).