Opinion
C. A. 9:23-cv-00990-TMC-MHC
06-04-2024
Comest Sabatino Allen, Petitioner, v. William Langdon, Warden, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Petitioner Comest Sabatino Allen (“Petitioner”), a state prisoner proceeding pro se, seeks habeas relief pursuant to 28 U.S.C. § 2254. Respondent William Langdon, Warden of Allendale Correctional Institution (“Respondent”) filed a Motion for Summary Judgment, along with a Return and Memorandum (“Motion”). ECF Nos. 25, 26. Petitioner filed a Response in Opposition. ECF No. 29. Respondent filed a Reply to the Response. ECF No. 30. The matter is ripe for review.
Respondent has also filed a Motion to Strike Petitioner's Response (ECF No. 31), and Petitioner has filed a Motion for Bail (ECF No. 34). Because the habeas Petition is subject to dismissal with prejudice, the undersigned denies these two motions as moot.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the assigned district judge referred the Motion to the undersigned for a report and recommendation. For the reasons that follow, the Court recommends that Respondent's Motion be granted, and the Petition be dismissed with prejudice.
I. BACKGROUND
The procedural history as described by Respondent has not been disputed by Petitioner in his Response and is set forth as follows. Petitioner is confined in the South Carolina Department of Corrections pursuant to orders of commitment from the Greenville County Clerk of Court. ECF No. 25 at 1. He was indicted at the June 2011 term of the Greenville County Grand Jury for assault and battery of a high and aggravated nature (ABHAN) (2011-GS-23-1296), failure to stop for a blue light (2011-GS-23-1297), leaving the scene of an accident with property damage (2011-GS-23-1305), and driving under the influence (DUI) (2011-GS-23-1306). ECF No. 25 at 1-2. He was represented by C. Timothy Sullivan, Esquire (“Trial Counsel”).
On July 18, 2012, Petitioner appeared before the Honorable G. Edward Welmaker (“Trial Judge”) and a jury for a trial on the charges. ECF No. 25-1 at 1. Petitioner was found guilty on all charges. The Trial Judge sentenced Petitioner to concurrent terms of 220 months for assault and battery of a high and aggravated nature, 36 months for failure to stop for a blue light, second offense, twelve months for leaving the scene of an accident with property damage, and twelve months for DUI, second offense. ECF No. 25-1 at 118.
A notice of appeal was filed at the South Carolina Court of Appeals. Wanda H. Carter (“Appellate Counsel”) perfected the appeal in the form of an Anders brief. ECF No. 25-2. Petitioner did not file a pro se response to the Anders brief. On appeal, Petitioner raised the following issue for review:
See Anders v. California, 386 U.S. 738 (1967). A brief filed pursuant to Anders effectively concedes that the appeal lacks a meritorious claim and provides a framework for counsel to withdraw. See id.
The trial judge erred in considering knowledge beyond the scope of sentencing information allowed in appellant's case because the prejudicial impact of this resulted in the denial of appellant's right to a fair sentencing proceeding in the case.ECF No. 25-2 at 4.
The Court of Appeals dismissed the appeal. ECF No. 25-3; State v. Allen, Op. No. 2013-UP-307 (S.C. Ct. App., filed July 3, 2013). Petitioner did not file a Petition for Rehearing. The Remittitur was sent on July 19, 2013. ECF No. 25-3 at 1.
Petitioner filed an application for post-conviction relief (“PCR”) on August 2, 2013. See ECF No. 25-4 at 1; ECF No. 25-6 at 1. Petitioner raised the following issues:
1. [T]here was no indictment from the Grand Jury for (ABHAN).
2. [I]neffective assistance of counsel
3. [D]efendant were denied due process on (Identification).See ECF No. 25-4 at 3.
An evidentiary hearing was convened on August 27, 2014, at the Greenville County Courthouse. ECF No. 25-5. Brian P. Johnson (“PCR Counsel”) represented Petitioner. At the hearing, Petitioner proceeded on just two claims for relief: (1) ineffective assistance for failure to investigate a potential witness and (2) the lack of a true billed indictment on his ABHAN charge. ECF No. 25-5 at 5. The Honorable James R. Barber, III, (“PCR Judge”) denied and dismissed the PCR application by order filed September 26, 2014. ECF No. 25-6.
PCR Counsel failed to file an appeal, despite Petitioner's apparent request to do so. There is a letter from PCR Counsel in the record, wherein PCR Counsel acknowledged that Petitioner wrote a letter to PCR Counsel asking to appeal the dismissal of the first PCR application. ECF No. 25-7 at 6. PCR Counsel noted that “through interoffice error,” Petitioner's letter was not brought to his attention until it was too late. ECF No. 25-7 at 6. PCR Counsel informed Petitioner that he may be entitled a belated appeal of his first PCR.
PCR Counsel incorrectly stated in the letter that Petitioner may be entitled to a belated appeal of his first PCR action pursuant to White v. State, 208 S.E.2d 35 (S.C. 1974). ECF No. 25-7 at 6. White v. State allows for a belated review of direct appeal issues. See White v. State, 208 S.E.2d 35 (S.C. 1974). In White v. State, the Supreme Court of South Carolina held that if the PCR Judge determines that the applicant never voluntarily and intelligently waived his right to appeal, on appeal of the PCR Judge's decision, the Supreme Court of South Carolina will review the trial record as if a direct appeal had been timely perfected to determine if there was reversible error. White, 208 S.E.2d at 39-40. The procedure to be used where the issue is denial of a direct appeal is found in Davis v. State, 342 S.E.2d 60 (S.C. 1986); see also Rule 243(h), SCACR. PCR Counsel likely meant to state Petitioner may be entitled to a belated appeal pursuant to Austin v. State, 409 S.E.2d 395 (S.C. 1991). An appeal pursuant to Austin v. State “is used when an applicant is prevented from seeking appellate review of a denial of his or her PCR application, such as when an attorney fails to seek timely review.” Odom v. State, 523 S.E.2d 753, 756 (S.C. 1999). “A PCR applicant is entitled to an Austin appeal if the PCR [court] affirmatively finds either: (1) the applicant requested and was denied an opportunity to seek appellate review; or (2) the right to appellate review of a previous PCR order was not knowingly and intelligently waived.” Id. at 756. “[C]ounsel is required to advise an applicant of the right to appellate review of the denial of PCR.” Bray v. State, 620 S.E.2d 743, 745 (S.C. 2005).
Petitioner filed a second PCR Application on March 19, 2015. ECF No. 25-7 at 1. Notably, despite PCR Counsel informing Petitioner of his right to seek a belated appeal, Petitioner did not seek a belated appeal. Rather, he raised the following issues:
1. “The police officer did not have any great bodily injury there was no evidence whatsoever in the (record).”
2. “[F]ail to tell the court about my biopolar disorder, my witness and he fail to charge the jury on the lessor offense instruction.”
3. “[F]ail to make a motion for directed verdict.”
4. “[F]ail to tell the court about the (incident report), whereas the victim said he had no injury.”
5. “[E]lements of the crime beyond a reasonable doubt.”
6. “See Jackson v. Virginia.”ECF No. 25-7 at 2.
The Honorable Robin B. Stilwell (“Second PCR Judge”) issued a Conditional Order of Dismissal on September 1, 2015, which was filed on September 8, 2015, and served on Petitioner on September 25, 2015. ECF No. 25-8; ECF No. 25-9 at 1, 4. The Conditional Order of Dismissal specifically provided that the second PCR application should be dismissed because it was filed outside the applicable statute of limitations, and it was impermissibly successive. ECF No. 25-8 at 3-4. Petitioner was given twenty days from the date of service of the order upon him to respond. See ECF No. 25-8 at 4-5. Petitioner responded to the Conditional Order of Dismissal. See ECF No. 25-9 at 1-2. The Second PCR Judge ultimately issued a Final Order of Dismissal on November 20, 2015, in which he dismissed the second PCR application with prejudice. ECF No. 25-9 at 3. Petitioner did not file an appeal.
In his third PCR application, filed September 7, 2018, Petitioner alleged he was being held in custody unlawfully for the following reasons:
1. Ineffective assistance of counsel
a. “I was denied my Fifth, Sixth, and Sixteenth Amendment rights of the United States Constitution.”
b. “I was deprived of Due Process of U.S. Const Law, life and liberty”
c. Failure to challenge the validity of the indictment
d. Failure of trial counsel to investigate
e. Failure of trial counsel to file an appeal
f. Failure of PCR counsel to appeal the denial of his first application postconviction relief
2. After-discovered evidence a. Incident reportSee ECF No. 25-11; ECF No. 25-12 at 3.
The Honorable Perry H. Gravely (“Third PCR Judge”) issued a Conditional Order of Dismissal, and Petitioner filed an Opposition to the Conditional Order of Dismissal. ECF No. 2512; ECF No. 25-13. The Third PCR Judge ultimately issued a Final Order of Dismissal on March 3, 2021, dismissing the action on the basis that Petitioner's third PCR application was time-barred under the applicable statute of limitations, impermissibly successive, and barred by the doctrine of res judicata. ECF No. 25-14 at 6-13.
The Third PCR Judge also noted that despite Petitioner's claim that PCR Counsel was ineffective for failing to file an appeal in his first PCR action, to seek relief in the form of a belated appeal, the Third PCR Judge concluded that such a claim was likewise time-barred and impermissibly successive, as the claim was available to Petitioner during his second PCR action, but was not asserted. ECF No. 25-14 at 9-10. The Third PCR Judge found that Austin v. State does not purport to grant the right to a belated appeal when a Petitioner has already filed a second PCR application and failed to raise a claim for such relief. ECF No. 25-14 at 9-10. Petitioner did not file an appeal.
On March 10, 2023, Petitioner filed this Petition for Writ of Habeas Corpus. ECF No. 1. Petitioner raises the following grounds for relief in the Petition:
GROUND ONE: Sufficiency of the evidence about hearsay.evidence about defendant was driving the truck.
SUPPORTING FACTS: The Defendant contends that officer Richard Coury's testimony that someone else told him that the defendant was driving the truck, it was inadmissible hearsay. Insofar as testimony was not based on his personal knowledge, but on information relayed to him by informant, my lawyer was ineffective and failed to object to hearsay evidence, and great bodily injury because of video.
GROUND TWO: Richard Coury, credibility into question as he fabricated his report that he was great bodily by the defendant.
SUPPORTING FACTS: His [use of force report] show officer injured. No injured (what he checked). All the court need to view this video it will show that JJ the driver never touch him. He said mirror of the truck struck my left shoulder.
GROUND THREE: Failed to call a witness at trial, Shibhan Grady, and I did not know my sister was a witness.
SUPPORTING FACTS: Also was at trial, but my attorney Timothy Sullivan did not call her to testify) and defendant told him I'm not going to court until my witnesses be there. He told me they gonna still make me go anyway, and the record at Greenville (County Detention Center) show he came visit me one time, a week before trial.
GROUND FOUR: Defendant was denied due process on this indictment for ABHAN since the Grand Jury did not True Bill.
SUPPORTING FACTS: This indictment and especially since defendant was not put on notice, the same day, defendant went to trial. The indictment used against me has not been before a grand jury. Counsel failed to challenge the legality and validity of the indictment. Due process was not afforded to me by not having a
(True Bill authorized signed indictment by a Grand Jury.) My counsel was ineffective for this, and not reading (the use of force report).ECF No. 1 at 5-11 (errors in original).
II. STANDARDS OF REVIEW
A. Summary Judgment Standard
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Id. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only 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.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
B. Federal Habeas Review under 28 U.S.C. § 2254
Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, in considering Petitioner's claims, the Court's review is limited by the deferential standard of review set forth in 28 U.S.C. § 2254(d). See Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under § 2254(d),
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the State court proceeding.28 U.S.C. § 2254(d); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (explaining federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law,” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding”). A state court's decision is contrary to clearly established federal law if that court “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Evans, 220 F.3d at 312 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision unreasonably applies clearly established federal law if the state court “identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quoting Williams, 529 U.S. at 413).
Because “review under § 2254(d)(1) focuses on what a state court knew and did,” this Court measures the reasonableness of the state court's decision based on the information in the record before the state court. Valentino v. Clarke, 972 F.3d 560, 575 (4th Cir. 2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). “Likewise, § 2254(d)(2) provides for a limited review of factual determinations in light of the evidence presented in the State court proceeding[;] [thus,] [t]his backward-looking language similarly requires an examination of the state-court decision at the time it was made.” Id. (citation and internal quotation marks omitted).
Accordingly, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 410. Further, factual findings “made by a State court shall be presumed to be correct,” and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
III. DISCUSSION
Respondent argues, inter alia, that the Petition is untimely, having been filed past the applicable statute of limitations deadline. For the following reasons, the Court agrees with Respondent.
Respondent also argues the Grounds raised in the Petition are procedurally defaulted and that Petitioner has failed to show cause and prejudice to excuse the default. ECF No. 25 at 12. Respondent alternatively argues the Grounds raised in the Petition are without merit. ECF No. 25 at 19. Because the Petition is clearly out of time, the undersigned does not address Respondent's alternative arguments.
A. Statute of Limitations in habeas cases
Because Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claim is governed by 28 U.S.C. § 2254(d), as amended. See Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). The AEDPA provides that “[a] 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). Subsection (d) of the statute provides that the limitation period shall run 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;
(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.28 U.S.C. § 2244(d)(1)(A)-(D).
The statute further provides that “[t]he time during which a properly filed application for State post-conviction or collateral relief with respect to the pertinent judgment or claim that is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2) (emphasis added). Subsections (d)(1) and (d)(2) carry differing requirements for the tolling of the statutory time.
1. Subsection (d)(1)
Subsection (d)(1)(A) specifies the one-year statute of limitations begins to run on the date the petitioner's conviction becomes final-i.e. at the conclusion of direct review-not after collateral review is completed. See 28 U.S.C. § 2244(d)(1)(A); Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000). 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 and the one-year statute of limitations begins to run.
If a defendant files a direct appeal and his conviction is affirmed, the timing of when the conviction becomes final depends on whether the defendant pursued his direct appeal to the highest state court. Compare Harris, 209 F.3d at 328 n.1 (noting conviction becomes final on the expiration of the ninety-day period to seek review by the United States Supreme Court from a state's highest court), with Gonzalez v. Thaler, 565 U.S. 134, 154 (2012) (holding, “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”). Thus, if a defendant pursues his direct appeal all the way to the Supreme Court of South Carolina-the highest state court-his conviction becomes “final” ninety days after the final ruling of that Court. See Harris, 209 F.3d at 328 n.1.
However, if a defendant pursues his direct appeal to the South Carolina Court of Appeals- the intermediate state appellate court-and forgoes petitioning the Supreme Court of South Carolina for a writ of certiorari after the Court of Appeals has affirmed his conviction, then his conviction becomes “final” either fifteen or thirty days after the ruling of the Court of Appeals. Specifically, a defendant's conviction becomes final fifteen days later if he fails to properly file a petition for rehearing in the Court of Appeals. See, e.g., Grant v. Bush, No. 6:14-CV-01313-DCN, 2015 WL 4747104, at *5 (D.S.C. Aug. 11, 2015) (“In light of his failure to file a timely petition for rehearing, Grant's state court convictions became final on February 27, 2009, fifteen days after the South Carolina Court of Appeals issued its opinion in Grant's direct appeal.” (emphasis added)); see also Rule 221(a), SCACR (“Petitions 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.”). Conversely, a defendant's conviction becomes final thirty days later if he properly files a petition for rehearing in the Court of Appeals, but nevertheless fails to petition the Supreme Court of South Carolina. See Gonzalez, 565 U.S. at 154; Rule 242(c), SCACR (“A petition for writ of certiorari shall be served on opposing counsel and filed with proof of service with the Clerk of the Court of Appeals and the Clerk of the Supreme Court within thirty (30) days after the petition for rehearing or reinstatement is finally decided by the Court of Appeals.” (emphasis added)).
This is because a petition for rehearing is a prerequisite for petitioning the Supreme Court of South Carolina. See Rule 242(c), SCACR (establishing that an appellant cannot petition the Supreme Court of South Carolina for review of the Court of Appeals' decision unless a petition for rehearing is filed in and acted on by the Court of Appeals); Gonzalez, 565 U.S. at 154 (holding, “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”).
2. Subsection (d)(2)
On the other hand, subsection (d)(2) of § 2244 concerns collateral review. It provides that the statute of limitations is tolled during the period of “a properly filed application for State postconviction 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 postconviction 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 v. Catoe, 257 F.3d 395, 399 (4th Cir. 2001).
A state collateral proceeding must be “properly filed” for the statutory tolling provisions of 28 U.S.C. § 2244(d)(2) to apply. “[A]n application is ‘properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, 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.” Artuz v. Bennett, 531 U.S. 4, 8 (2000) (emphasis in original) (footnote omitted). “When a postconviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (quoting Carey v. Saffold, 536 U.S. 214, 226 (2002)).
B. Petitioner did not timely file his Petition.
Respondent argues the Petition was untimely. Under § 2244(d), the State bears the burden of asserting the statute of limitations as an affirmative defense. Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002). Petitioner then bears the burden of establishing that his petition is timely or that he is entitled to the benefit of the doctrine of equitable tolling. See Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003). Generally, federal courts use Fed.R.Civ.P. 6(a) in computing periods of time under 28 U.S.C. § 2244(d). Hernandez v. Caldwell, 225 F.3d 435, 439 (4th Cir. 2000).
Petitioner was convicted via jury trial on July 18, 2012. ECF No. 25-1. Petitioner timely appealed to the South Carolina Court of Appeals by way of an Anders brief. The Court of Appeals dismissed the appeal on July 3, 2013. ECF No. 25-3; State v. Allen, Op. No. 2013-UP-307 (S.C. Ct. App., filed July 3, 2013). Petitioner did not file a Petition for Rehearing, and thus his conviction and sentence became final 90 days after the South Carolina Court of Appeals dismissed the Anders appeal. See Wright v. McFadden, No. 5:14-CV-00282-TLW, 2014 WL 6666681, at *10 (D.S.C. Nov. 24, 2014) (noting, in light of South Carolina case law, when the South Carolina Court of Appeals, rather than the Supreme Court of South Carolina, reviews and issues an opinion “concerning an Anders appeal, the Court of Appeals is the highest court ‘in which a decision could be had'” and thus an appellant could directly seek the United States Supreme Court's review of the Anders opinion within ninety days of the South Carolina Court of Appeals' decision); Heydman v. Williams, No. 0:21-CV-00019-DCC, 2021 WL 4785821, at *2 (D.S.C. Oct. 14, 2021) (determining the statute of limitations for a petitioner who had his Anders appeal dismissed began to run ninety days after the South Carolina Court of Appeals' opinion was filed). Accordingly, Petitioner's conviction became final on October 1, 2013, and the statute of limitations would have begun to run on the following day, October 2, 2013. See Fed.R.Civ.P. 6(a) (stating, for computing time, “exclude the day of the event that triggers the period”); Hernandez, 225 F.3d at 439 (finding the AEDPA's effective date was April 24, 1996, and “the actual count on the limitations period began on April 25, 1996,” the following day).
Normally, his convictions would have become final for purposes the statute of limitations fifteen days from the date of the Court of Appeals' decision because he failed to file a petition for rehearing. See Rule 221(a), SCACR (“Petitions 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.”); Rule 242(c), SCACR (establishing that an appellant cannot petition the South Carolina Supreme Court for review of the Court of Appeals' decision unless a petition for rehearing is filed in and acted on by the Court of Appeals); Grant, No. 6:14-CV-01313-DCN, 2015 WL 4747104, at *5 (“In light of his failure to file a timely petition for rehearing, Grant's state court convictions became final on February 27, 2009, fifteen days after the South Carolina Court of Appeals issued its opinion in Grant's direct appeal.”). However, as noted above, an Anders appeal alters the time by which a conviction becomes final for purposes of the statute of limitations.
Petitioner filed his first PCR application on August 2, 2013. See ECF No. 25-4 at 1; ECF No. 25-6 at 1. Thus, no time had elapsed for purposes of the statute of limitations, as Petitioner still had time to pursue his direct appeal to the Supreme Court of the United States. Further, the statute of limitations was suspended on this date and continued to be tolled while Petitioner's state PCR action was pending in state court. The PCR Judge issued is Order of Dismissal on September 26, 2014. ECF No. 25-6. Petitioner had 30 days in which to file a notice of appeal, but he failed to do so. Thus, his statute of limitations began to run on October 27, 2014. Because no time had elapsed, Petitioner had his full year allotted under AEDPA-until October 27, 2015-to file his federal habeas petition. Petitioner filed this Petition March 10, 2023, nearly eight years too late. ECF No. 1.
The Court notes that the second and third PCR actions-filed March 19, 2015, and September 7, 2018, respectively-did not toll the statute of limitations because both PCR actions were dismissed as time-barred and successive. See, e.g., Lounds v. Williams, No. 2:22-CV-3272-TMC, 2023 WL 5287158, at *4 (D.S.C. Aug. 17, 2023) (finding Petitioner's second and third PCR applications did not toll the statute of limitations because both were dismissed as time-barred and successive). Because it is “well settled that a PCR application deemed successive or untimely is not ‘properly filed' for purposes of the AEDPA and does not toll the statute of limitations under § 2244(d)(2),” Petitioner's federal habeas petition is untimely. See id. (collecting cases).
Consequently, because Petitioner filed outside the one-year statute of limitations, this action is untimely under 28 U.S.C. § 2244(d).
C. No exceptions apply to Petitioner's case
Because the Petition was filed nearly eight years late, it is untimely, absent statutory or equitable tolling. In his Response, Petitioner does not meaningfully argue either. See ECF No. 29. Rather, he argues that his PCR Counsel failed to appeal his first PCR action, and that he is entitled to a belated appeal. See ECF No. 29-1 at 3. Petitioner attaches a letter from PCR Counsel in January of 2015, wherein PCR Counsel acknowledged that Petitioner wrote a letter to PCR Counsel asking to appeal the dismissal of the first PCR application. See ECF No. 29-1 at 4; see also ECF No. 257 at 6. In his letter, PCR Counsel noted that “through interoffice error,” Petitioner's letter was not brought to his attention until it was too late. At that time, PCR Counsel informed Petitioner that he may be entitled a belated appeal pursuant to White v. State, 208 S.E.2d 35 (S.C. 1974). Construing Petitioner's Response liberally, he has failed to establish he is entitled to equitable tolling.
This letter was also included in the materials attached to Respondent's Return.
As noted above in footnote three, PCR Counsel likely meant to state Petitioner may be entitled to a belated appeal pursuant to Austin v. State, 409 S.E.2d 395 (S.C. 1991).
In 2000, the Fourth Circuit held the AEDPA's statute of limitations is not jurisdictional, but subject to the doctrine of equitable tolling. Harris, 209 F.3d at 329-30. In 2010, the United States Supreme Court squarely considered the issue and also held § 2244 “is subject to equitable tolling in appropriate cases.” Hollandv. Florida, 560 U.S. 631, 645 (2010).
To benefit from the doctrine of equitable tolling, Petitioner must show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Id. at 649 (quotingPace, 544 U.S. at 418)); Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (holding that, for equitable tolling to apply, a petitioner must show that there were “(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time”).
Even construing Petitioner's Response liberally, Petitioner has failed to show extraordinary circumstances prevented him from timely filing. Notably, the letter from PCR Counsel was sent on January 13, 2015, which was two months before Petitioner filed his second PCR application. See ECF No. 29-1 at 4. Furthermore, the letter invited Petitioner to contact PCR Counsel if he had any questions. Petitioner did not pursue a belated appeal of his first PCR application via a claim in his second PCR application. See ECF No. 25-7. Thus, although Petitioner was likely entitled to a belated PCR appeal pursuant to Austin v. State, Petitioner did not pursue this right or otherwise preserve it in state court.
Thus, despite PCR Counsel's apparent error in referring to White v. State instead of Austin v. State, Petitioner had the opportunity to clarify what he may have been entitled to regarding a belated PCR appeal. Furthermore, regardless of misstating which case served as a basis for pursuing a belated appeal, the substance of PCR Counsel's letter was correct: Petitioner was likely entitled to a belated PCR appeal.
In any event, even if the Court were to allow for equitable tolling during the pendency of the second PCR action, the federal habeas Petition is still well outside the one year statute of limitations, as the Second PCR Judge ultimately issued a Final Order of Dismissal on November 20, 2015, in which he dismissed the second PCR application with prejudice, and Petitioner did not file his federal habeas petition until March 10, 2023. See ECF No. 25-9 at 3; ECF No. 1.
Accordingly, the Petition should be dismissed on statute of limitations grounds. The filing was untimely, and Petitioner has not presented facts sufficient to support an argument that the limitations period should be equitably tolled. See Harris, 209 F.3d at 330 (noting a petitioner has burden of showing equitable tolling). Therefore, the Court recommends that Respondent's Motion be granted, and the Petition be dismissed with prejudice.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 26) be GRANTED and that the Petition be DISMISSED with prejudice.
It is further ORDERED that Respondent's Motion to Strike (ECF No. 31) and Petitioner's Motion for Bail (ECF No. 34) be DENIED as moot.