Opinion
C. A. 22-1102-RMG-PJG
10-31-2022
James Tytil Wright, Petitioner, v. Warden, Broad River Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Petitioner Eric Wright, a self-represented state prisoner, 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. 14.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Wright of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the respondent's motion. (ECF No. 15.) Wright filed a response in opposition. (ECF No. 17.) 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) because it is untimely.
BACKGROUND
Wright was indicted in 2010 in Beaufort County for armed robbery and kidnapping. (App. at 499-502, ECF No. 13-2 at 234-37.) Wright was represented by Scott W. Lee, Esquire, and on August 25-27, 2014 was tried in absentia before a jury and found guilty as charged. (App. at 10363, ECF No. 13-1 at 12 through ECF No. 13-2 at 98.) Wright was subsequently apprehended, and the circuit court sentenced Wright on September 16, 2014 to concurrent sentences of twenty years' imprisonment for each crime. (ECF No. 13-7.)
Wright timely appealed and was represented by Kathrine H. Hudgins, Esquire, Appellate Defender, who filed a brief on Wright's behalf. (App. at 365-80, ECF No. 13-2 at 100-15.) On July 27, 2016, the South Carolina Court of Appeals affirmed Wright's conviction and sentence. (App. at 402-03, ECF No. 13-2 at 137-38.) The remittitur was issued on August 15, 2016. (ECF No. 13-3.)
Wright filed a pro se application for post-conviction relief (“PCR”) on June 19, 2017, which he later amended through counsel. (Wright v. State of South Carolina, 2017-CP-07-1250, App. at 404-22, ECF No. 13-2 at 139-57; App. at 433, ECF No. 13-2 at 168.) On April 2, 2019, the PCR court held an evidentiary hearing at which Wright testified and was represented by Ashly A. McMahan, Esquire. (App. at 435-78, ECF No. 13-2 at 170-213.) By order filed September 19, 2019, the PCR court dismissed Wright's PCR application with prejudice. (App. at 480-98, ECF No. 13-2 at 215-33.)
Counsel for Wright, David Alexander, Esquire, Assistant Appellate Defender for the South Carolina Commissioner on Indigent Defense, filed a Johnson petition for a writ of certiorari on April 30, 2020. (ECF No. 13-8.) On April 15, 2021, the South Carolina Court of Appeals denied Wright's petition for a writ of certiorari. (ECF No. 13-10.) The remittitur was issued May 5, 2021 and filed with the Beaufort County Clerk of Court on May 10, 2021. (ECF No. 13-12.)
Johnson v. State, 364 S.E.2d 201 (S.C. 1988) (applying the factors in Anders v. California, 386 U.S. 738 (1967), to post-conviction appeals). Anders requires that counsel who seeks to withdraw after finding the “case to be wholly frivolous” following a “conscientious examination” must submit a brief referencing anything in the record that arguably could support an appeal; furnish a copy of that brief to the defendant; and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited. Anders, 386 U.S. at 744.
Wright filed his federal Petition for a writ of habeas corpus on March 28, 2022. (ECF No. 1.)
There is no stamp from the prison mailroom on the envelope containing the Petition. However, based on the return address and the postmark zip code, it appears that this Petition was mailed from the prison. Moreover, Wright's Petition contains a declaration under penalty of perjury that his Petition was placed in the prison mailing system on March 28, 2022. Therefore, the court uses this date as the filing date. See Houston v. Lack, 487 U.S. 266 (1988) (stating that a prisoner's pleading is filed at the moment of delivery to prison authorities for forwarding to the district court).
FEDERAL HABEAS ISSUES
Wright's federal Petition for a writ of habeas corpus raises the following issues, quoted verbatim:
Ground One: Ineffective assistance of counsel failing to challenge the exulpotory evidence as material
Ground Two: Was the trial court within jurisdiction to preside over the petitioner
Ground Two [ sic ]: Failure to investigate. Trial counsel was ineffective for failure to motion for a compentcy hearing at trial.
Ground Three: Ineffective assistance of appeallate counsel.
Ground Four: Vindictive prosecution(Pet., ECF No. 1) (errors in original).
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 August 11, 2016-the expiration of the time in which Wright could have timely filed a petition for rehearing with the South Carolina Court of Appeals. See Rule 221(a), SCACR (instructing that a petition 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”); Gonzalez, 565 U.S. at 150 (“[B]ecause [petitioner] did not appeal to the State's highest court, his judgment became final when his time for seeking review with the State's highest court expired.”). Accordingly, the limitations period began to run on August 12, 2016, and expired August 11, 2017, 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”).
Because Wright did not seek certiorari from the South Carolina Supreme Court, he is not entitled to an additional tolled time period of 90 days in which to seek certiorari review from the United States Supreme Court. Hammond v. Hagan, C/A No. 4:07-1081-JFA, 2008 WL 2922860, at *3 (D.S.C. July 24, 2008); see also 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. 10(b) (stating that certiorari is considered where “state court of last resort” has decided an important federal question); U.S. Sup. Ct. R. 13 (stating that the time period for a petition for a writ of certiorari is 90 days from the decision or judgment of a state court of last resort).
Wright filed his state PCR application on June 19, 2017. At that point, 311 days of nontolled 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 May 5, 2021, when the South Carolina Court of Appeals issued the remittitur from its order denying Wright's Johnson petition for a writ of certiorari. Accordingly, Wright had until June 28, 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 March 28, 2022-approximately nine months after the expiration of the statute of limitations.
C. Wright's Arguments
In response to the respondent's motion for summary judgment, Wright argues that that the statute of limitations “do[es] not apply” because he is actually innocent. (Petr.'s Resp. Opp'n Summ. J., ECF No. 17 at 1.) Additionally, in his Petition Wright summarily argues that his Petition should not be deemed untimely because there is inadequate mail room staff, his prison supervisor has denied him access to the courts, and he is on twenty-four-hour lockdown and cannot leave his cell except to shower. (Pet., ECF No. 1 at 13.) Wright also appears to attribute the untimeliness of his federal habeas Petition to his counsel from prior state court proceedings. (Id.)
1. Equitable Tolling
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.
Wright has not established grounds for equitable tolling and has 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). Wright summarily alludes to “inadequate” prison mailroom staff and the denial of his access to the courts by an unnamed supervisor as reasons his Petition was untimely filed. However, Wright fails to provide any specifics about any attempts to mail his Petition that were hindered by mailroom staff or how he was denied access to the courts and by whom, which falls short of the necessary standard of establishing extraordinary circumstances beyond Wright's control. See Rouse, 339 F.3d at 246. Moreover, he does not indicate when such events occurred, which is pivotal to establishing that he has been diligently pursuing his rights, as is his burden. See Harris, 209 F.3d at 330; Pace, 544 U.S. at 418.
Wright also argues that, since he is on twenty-four-hour lockdown, he is entitled to equitable tolling. Wright provides no details as to when his lockdown began or how long he has been on lockdown status. Nor has Wright alleged that he is prohibited from mailing his federal habeas Petition while in lockdown. Moreover, institutional transfers and lockdowns do not generally qualify as extraordinary circumstances sufficient to warrant equitable tolling. See, e.g., Smalls v. Nelson, C/A No. 2:19-2669-SAL-MGB, 2020 WL 1930636, at *7 (D.S.C. Mar. 23, 2020) (Report and Recommendation), adopted by 2020 WL 1922831 (D.S.C. Apr. 20, 2020); Grant v. Bush, C/A No. 6:14-01313-DCN, 2015 WL 4747104, at *8 (D.S.C. Aug. 11, 2015); but see Davis v. Cartiledge, C/A No. 0:09-cv-3218-RMG, 2011 WL 441889, at *4 (2011) (distinguishing caselaw and finding that a petitioner who filed his federal petition fifteen days after the statutory deadline was entitled to equitable tolling when the record showed that petitioner was on lockdown at the time of his deadline and petitioner contended that the mailroom was closed).
Similarly, Wright's argument that inadequate representation somehow caused or contributed to his Petition being untimely filed does not avail him. Although attorney misconduct that is beyond a garden variety claim of attorney negligence may present a basis for equitable tolling, 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 651-52 (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).
As discussed above, at the conclusion of his PCR litigation, Wright still had approximately two months in which to file his federal habeas petition, yet the record is clear that Wright waited almost eleven months after the conclusion of his PCR litigation before he did so. Accordingly, this court cannot say that Wright has been pursuing his rights diligently. See Harris, 209 F.3d at 330; see also Pace, 544 U.S. at 419. Additionally, to the extent Wright's lockdown status prevented his access to the law library, or to the extent Wright was not aware of the statute of limitations deadlines (although not argued by Wright), these arguments do not avail him, as it is well recognized that these factors do not warrant equitable tolling. See Cross-Bey v. Gammon, 322 F.3d 1012, 1015 (8th Cir. 2003) (rejecting equitable tolling where a petitioner alleged lack of legal knowledge or legal resources); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well established that ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.”) (internal quotation marks and citations omitted); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (“Owens is young, has a limited education, and knows little about the law. If these considerations delay the period of limitations until the prisoner has spent a few years in the institution's law library, however, then § 2244(d)(1) might as well not exist; few prisoners are lawyers.”); Jones v. South Carolina, C/A No. 4:05-2424-CMC-TER, 2006 WL 1876543, at *3 (D.S.C. June 30, 2006) (“Other courts addressing equitable tolling have found that ‘extraordinary circumstances' are not: having an inadequate law library, . . . claims of actual innocence, reliance on other inmates' advice, ignorance of the AEDPA filing deadline, or even (in some instances) petitioner illness.”).
For the reasons stated above, Wright cannot show that he has been pursuing his rights diligently or that some extraordinary circumstance stood in his way such that he is entitled to equitably toll the one-year statute of limitations. Rouse, 339 F.3d at 246.
2. Actual Innocence
To the extent Wright asserts that the federal statute of limitations should be tolled because he is actually innocent, such an argument fails. While the United States Supreme Court has held that “actual innocence, if proved, may serve as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or . . . expiration of the statute of limitations,” the Court cautioned that “tenable actual-innocence gateway pleas are rare.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). To present a credible claim of actual innocence, a petitioner must present “new reliable evidence-whether it be exculpatory evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). “[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. at 329; see House v. Bell, 547 U.S. 518, 538 (2006) (reiterating that the Schlup standard “is demanding and permits review only in the extraordinary case”) (internal quotations omitted). The McQuiggin Court also noted that “ ‘the timing of the [petition]' is a factor bearing on the ‘reliability of th[e] evidence' purporting to show actual innocence,” and “[u]nexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing.” McQuiggin, 569 U.S. at 386, 399 (quoting Schlup, 513 U.S. at 332) (alterations in original).
In support of his “actual innocence” argument, Wright provides two affidavits from “state witness Tyshon Barnes and his brother, who state petitioner is innocent.” (Petr.'s Resp. Opp'n Summ. J., ECF No. 17 at 1.) In fact, the affiants do not aver that Wright is innocent; rather, Tyshon Barnes avers that Wright was with him and searched a kidnapping victim's purse, but emphasized that he (Tyshon) took and used the victim's debit card. (ECF No. 17-1 at 9.) Tyshon Barnes also generally avers that he lied on the stand during Wright's trial in order to receive a sentence reduction, but provides no specifics. (Id. at 10.) Tyshon's brother, Kenneth Barnes, provides affidavit testimony that merely states that Wright was “acting under coercion and threat” from Tyshon. (Id. at 11.) Importantly, the affidavits are dated January 18, 2017 and April 10, 2017, and appear to have been part of Wright's newly-discovered evidence issue raised in his PCR application, and referenced in the April 2, 2019 PCR hearing. (See ECF No. 13-2 at 139-57, 187:16-21.) As this new evidence was clearly available to Wright prior to the expiration of his limitations deadline, Wright has failed to provide sufficient information to demonstrate that he has been pursuing his rights diligently to timely file a federal habeas petition. McQuiggin, 569 U.S. at 386-87, 398-99; Holland, 560 U.S. at 649; Pace, 544 U.S. at 418-19; Harris, 209 F.3d at 330. Moreover, to the extent Wright alleges that this new evidence would have established his innocence, such allegations were raised in his PCR application, Wright's PCR application was dismissed, and Wright's Johnson petition for a writ of certiorari was denied by the South Carolina Court of Appeals. Wright has failed to present any argument in his federal Petition that would call the PCR court's or the court of appeals's determination into question. Cf. Schlup, 515 U.S. at 327.
Additionally, Wright's proffered evidence does not demonstrate “actual innocence” because he has not shown that “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327. It is the responsibility of the jury to weigh credibility and to resolve any conflicts in the evidence presented. See United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994). Further, “if the evidence supports different, reasonable interpretations, the jury decides which interpretation to believe.” Id. Moreover, Wright has failed to show that his new evidence-which may have, at most, impeached Tyshon Barnes's testimony-would have made it more likely than not that no reasonable juror would have convicted Wright. Accordingly, any such argument Wright may be making is insufficient to convince the court that this is such an “extraordinary case” to justify applying the “extremely rare” actual innocence exception. Schlup, 513 U.S. at 321-22; see also McQuiggin, 569 U.S. at 401 (explaining that “untimeliness . . . does bear on the credibility of evidence proffered to show actual innocence”).
RECOMMENDATION
Wright has failed to present grounds that would entitle him to equitable tolling and has failed to meet the demanding standard required to show actual innocence. The court therefore recommends that the respondent's motion for summary judgment (ECF No. 14) be granted and Wright's Petition dismissed with prejudice as untimely.
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).