Opinion
C. A. 1:22-57-HMH-SVH
10-17-2022
James L. Burnett, # 171713, Petitioner, v. Warden of Broad River Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE
James L. Burnett (“Petitioner”), a prisoner at the Broad River Correctional Institution of the South Carolina Department of Corrections, filed this pro se 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 Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment filed on June 15, 2022. [ECF Nos. 30, 31]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 32]. Petitioner filed a response on July 18, 2022. [ECF No. 41].
Petitioner was incarcerated at Tyger River Correctional Institution when he filed the petition, but was subsequently moved to Broad River Correctional Institution. See ECF Nos. 1, 29. The case caption has been changed to reflect Petitioner's current custodian.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted.
I. Factual and Procedural Background
At trial, the solicitor presented evidence that on December 11, 1998, Petitioner willfully and unlawfully entered a building belonging to Symtech, Inc., in the nighttime, without consent, and with intent to commit a crime in violation of S.C. Code Ann. § 16-11-312 (1976). [ECF No. 34 at 1, 3]. The solicitor also presented evidence that Petitioner had two or more prior convictions for burglary/housebreaking. Id. He presented evidence that on December 11, 1998, Petitioner feloniously took and carried away electronics valued at more than $5,000 belonging to Symtech, Inc., with the intent to deprive the owner permanently of such property in violation of S.C. Code Ann. § 16-13-30(B)(2) (1976). Id. at 4, 6. He presented evidence that on December 11, 1998, Petitioner possessed a screwdriver, gloves, and/or other implements or things adapted, designed, or commonly used for the commission of burglary, larceny, safecracking, or other crime, under circumstances evincing an intent to use or employ or allow the same to be used or employed in the commission of a crime, or knowing that the same were intended to be so used in violation of S.C. Code Ann. § 16-11-20 (1976). Id. at 8, 9. He also presented evidence that on December 11, 1998, Petitioner knowingly and willingly opposed and/or resisted the efforts of individuals he knew or should have known were state law enforcement officers to make a lawful arrest in violation of S.C. Code Ann. § 16-9-320(a) (1976). Id. at 12, 13.
Petitioner was indicted by the Spartanburg County grand jury during the April 1999 term of court for: (1) burglary, second degree (building) (1999-GS-42-2461) [ECF No. 34 at 2, 3]; (2) grand larceny (1999-GS-42-2462) [ECF No. 34 at 5, 6]; (3) possession of tools of a crime (1999-GS-42-2464) [ECF No. 34 at 8, 10]; and (4) resisting arrest (1999-GS-42-2465) [ECF No. 34 at 13, 14]. On April 27, 1999, Deputy Solicitor Donnie Willingham served Petitioner with notice that he would receive a life sentence without parole under S.C. Code Ann. § 17-25-45 (1976) if convicted of burglary, second degree, given his prior two convictions for burglary first degree and his prior two convictions for burglary second degree. [ECF No. 34-1]. Petitioner was represented by Laura L. Orr, Esq. and Michael Bartosh, Esq., and proceeded to a jury trial on May 19, 1999, before the Honorable Henry F. Floyd, Circuit Court Judge. [ECF Nos. 34-4 at 3 and 34-7 at 6]. The jury found Petitioner guilty of all charges [ECF No. 34 at 2, 5, 10, 14], and Judge Floyd sentenced Petitioner to life imprisonment for burglary, five years for grand larceny, five years for possession of tools of a crime, and one year for resisting arrest, all to run concurrently. [ECF No. 34-4 at 3].
Petitioner appealed his convictions to the South Carolina Court of Appeals (“Court of Appeals”). [ECF No. 34-2]. He was represented on appeal by Aileen P. Clare, Esq., of the South Carolina Office of Appellate Defense. [ECF No. 34-3 at 2]. The Court of Appeals originally issued a decision on June 28, 2000. [ECF No. 34-3]. However, on September 13, 2000, it issued an order withdrawing its original opinion, substituting a subsequent opinion that affirmed the trial court's order and denied Respondent's petition for rehearing. Id.
Attorney Clare filed a petition for a writ of certiorari in the South Carolina Supreme Court (“S.C. Supreme Court”) on October 10, 2000, arguing the trial court erred in refusing to consider his guilty plea to three 1990 burglaries as a single event under S.C. Code § 17-25-50 as they were closely related, resolved in the same proceeding, and should have been joined for sentencing. [ECF No. 34-4]. She maintained Respondent should receive a new sentencing hearing, with his prior convictions being considered as one “strike” under S.C. Code Ann. § 17-25-45 (1976). Id. at 7. The S.C. Supreme Court filed an order dated December 18, 2000, denying certiorari. [ECF No. 34-5].
Petitioner filed his first application for post-conviction relief (“PCR”) on September 10, 2001 (2001-CP-42-2675) [ECF No. 34-7], in which he alleged the following claims: ineffective assistance of trial counsel for failing to inform him of the evidence and keep him informed of trial strategy; ineffective assistance of trial counsel for failing to object to Beatrice Williams serving as a juror; ineffective assistance of trial counsel for failing to challenge the 1990 indictments for lack of subject matter jurisdiction; ineffective assistance of appellate counsel for failing to challenge the sentence enhancement; ineffective assistance of trial counsel for agreeing that he had two prior convictions; prosecutorial misconduct as a result of prejudicial comments during closing arguments; and constitutional violations and errors of law in the trial court's failure to grant a motion for a directed verdict of not guilty and in admitting evidence of his prior convictions and a photograph of him handcuffed with a flashlight, screwdriver, and gloves protruding from his pockets. [ECF Nos. 347 at 3, 8 and 34-8 at 3-8]. Petitioner was represented in the PCR proceedings by Cameron Boggs, Esq. [ECF No. 34-8]. A PCR evidentiary hearing was held before the Honorable J. Derham Cole, Circuit Court Judge, on November 10, 2003. Id. at 1. On January 5, 2004, Judge Cole issued an order of dismissal with prejudice. [Id. at 1-9].
On or about January 19, 2004, Petitioner filed a motion to alter or amend the PCR court's judgment. [ECF No. 34-9]. Judge Cole denied the motion and dismissed the action by order dated March 10, 2004, and judgment was entered on March 18, 2004. [ECF No. 34-10].
Petitioner was represented in his PCR appeal by Grant H. Gibson, Esq., who filed a timely petition for a writ of certiorari in the S.C. Supreme Court arguing: the Court of Appeals erred in affirming the trial court's decision to allow evidence of four of Petitioner's prior burglary convictions when S.C. Code Ann. § 17-25-45(B) only requires the state to establish two prior burglary convictions; the Court of Appeals erred in affirming the trial court's admission of Petitioner's prior burglaries without weighing the probative value of the convictions against their prejudicial impact; the Court of Appeals erred in affirming the trial court's determination that Petitioner's four prior convictions did not constitute one offense under S.C. Code Ann. § 17-25-50; and trial and PCR counsel were ineffective and prejudiced Petitioner. [ECF No. 34-11]. The S.C. Supreme Court denied the petition for a writ of certiorari on August 14, 2006. [ECF No. 34-12].
A date does not appear on the copy of the petition included in the record, but other records reflect that it was timely filed. See ECF Nos. 34-11 and 34-22 at 2.
On September 21, 2006, Petitioner filed a pro se petition for rehearing, requesting the court relieve Attorney Gibson as counsel, grant rehearing on the merits, and appoint competent counsel. [ECF No. 34-13]. The S.C. Supreme Court denied the petition for rehearing by order dated October 19, 2006, and issued a remittitur the same day. [ECF Nos. 34-14, 34-15].
Petitioner filed a petition for a writ of habeas corpus in the Spartanburg County Court of Common Pleas on January 30, 2007 under case number 2007-CP-42-1088, raising claims as to ineffective assistance of counsel, subject matter jurisdiction, prosecutorial misconduct, judicial error, abuse of discretion, and judicial misconduct. [ECF No. 34-16]. He argued; 1) trial counsel was ineffective for failing to object to prejudicial testimony of the state's witness as to his four prior burglary convictions; 2) the prosecutor engaged in misconduct in emphasizing his four prior burglary convictions in the closing argument; 3) trial counsel was ineffective in failing to object to the prosecutor's prejudicial statement during closing arguments; 4) PCR counsel was ineffective in failing to amend his petition for a writ of certiorari and in submitting documents to the S.C. Supreme Court without a signature; 5) trial counsel was ineffective for failing to move for a mistrial given a juror's failure to disclose her prior interaction with him during voir dire; and 6) the trial judge abused his discretion (a) in failing to analyze the undue prejudice that would result from admitting his four prior burglary convictions, (b) in allowing such evidence to be presented to the jury, (c) in declining to consider his four prior burglary convictions as one offense, and (d) in declining to permit him to stipulate to having two prior burglary convictions. Id. A hearing was held on January 14, 2008, at which Petitioner was represented by John E. Rogers, II, Esq. [ECF No. 34-22 at 3]. The Honorable J. Mark Hayes, II, Circuit Court Judge, issued an order denying and dismissing the petition on May 22, 2008, as Petitioner's claims in the petition could have been raised in his PCR application such that the petition was successive and untimely. [ECF No. 3417].
On May 30, 2008, Attorney Rogers filed a notice of appeal on Petitioner's behalf. [ECF No. 34-18]. The S.C. Supreme Court issued an order dismissing the matter on July 11, 2008, as Petitioner failed to show any arguable basis for asserting that Judge Hayes's determinations were improper. [ECF No. 34-19]. The remittitur issued on July 29, 2008. [ECF No. 34-20].
Petitioner filed a second application for PCR (2008-CP-42-3751) on July 18, 2008. [ECF No. 34-21]. He argued he had been denied fundamental fairness and due process of law; the court had abused its discretion; he had received ineffective assistance from PCR counsel, who failed to amend his PCR application to include all grounds he sought to raise; and he had received ineffective assistance of trial counsel, as they failed to investigate his prior offenses, to object to the seating of a juror with whom he had a prior working relationship, and to move for a mistrial based on his prior relationship with the juror. Id. Judge Hayes issued a conditional order of dismissal on May 16, 2009, finding the PCR application was successive and its allegations were required to be brought in an original, supplemental, or amended application pursuant to S.C. Code Ann. § 17-27-90 (1976). [ECF No. 34-22]. He further found that the PCR application should be summarily dismissed based on Petitioner's failure to comply with the statute of limitations for filing an PCR application and the doctrine of res judicata. Id. Judge Hayes subsequently issued a final order of dismissal on October 27, 2009, denying and dismissing with prejudice Petitioner's second PCR application. [ECF No. 34-23]. It does not appear that Petitioner appealed this decision.
Petitioner filed a third application for PCR (2019-CP-42-1169) in the Spartanburg County Court of Common Pleas on March 28, 2019, arguing his conviction should be overturned based on newly-discovered evidence. [ECF No. 34-24]. He maintained he had received evidence showing the statutes on which he was convicted were invalid, as they did not bear the state's Great Seal. Id. Petitioner attached to the third PCR application a March 2, 2019 letter from Steven D. Tuttle (“Mr. Tuttle”), deputy director of archives and records management at the South Carolina Department of Archives and History. Id. Mr. Tuttle explained that he had checked the acts Petitioner requested he check and “could not locate a visible impression of the Great Seal” on 1995 Act No. 7 and 1998 Act No. 402. Id. Petitioner claimed his counsel performed deficiently because they failed to discover this statutory defect. Id.
The South Carolina Constitution provides: “No Bill or Joint Resolution shall have force of law until it shall have been read three times and on three several days in each house, has had the Great Seal of the State affixed to it, and has been signed by the President of the Senate and the Speaker of the House of Representatives: Provided, that either branch of the General Assembly may provide by rule for a first and third reading of any Bill or Joint Resolution by its title only.” S.C. Const. art. III, § 18.
Judge Hayes issued a final order summarily dismissing the third PCR application with prejudice on February 28, 2020, and finding Respondent had not adequately shown why he was entitled to relief based on newly-discovered evidence, as the evidence could have been discovered through his exercise of reasonable diligence prior to his direct appeal, original PCR action, and three previous collateral actions. [ECF No. 34-25]. The court further noted that any absence of the Great Seal would not render Petitioner's convictions unconstitutional or improper. Id. It concluded Petitioner's application was barred by the statute of limitations, the doctrine of laches, and on successiveness grounds. Id.
Petitioner filed an appeal in the S.C. Supreme Court on March 24, 2020. [ECF No. 34-26]. On May 22, 2020, the S.C. Supreme Court issued an order dismissing the action, as Petitioner had failed to show an arguable basis for asserting the determination by the lower court was improper. [ECF No. 34-28]. The S.C. Supreme Court issued the remittitur on July 7, 2020. [ECF No. 3429].
Petitioner filed this federal petition for a writ of habeas corpus on November 2, 2021. [ECF No. 1 at 15].
The court received and docketed the petition on January 6, 2022. [ECF No. 1]. Because Petitioner is incarcerated, he benefits from the “prison mailbox rule.” Houston v. Lack, 487 U.S. 266 (1988). The petition includes a date stamp reflecting “RECEIVED NOV 02 2021 TYRCI MAILROOM.” Id. at 15. Therefore, the court construes the petition as having been filed on November 2, 2021.
II. Discussion
A. Federal Habeas Issues
Petitioner asserts he is entitled to a writ of habeas corpus on the following grounds:
Ground One: Lack of Great Seal Affixed to the Acts 17-25-45 did not have 1998 Act No. 402 affixed with the Great Seal.
Supporting Facts: Therefore this act can not be used for enhancement.
Ground Two: Newly Discovered Evidence
Supporting Facts: 1995 Act No. 7, and 1998 Act. No. 402, which I was convicted does not have the impression of the Great Seal.
Ground Three: Juror Disqualification Free Standing Claim, Juror failed to answer voir d[i]re truthfully
Supporting Facts: The Defendant was denied his Constitutional right to an impartial jury, where juror failed to disclose her work experience with the Defendant in 1973, despite having been specifically asked on voir dire if she knew the defendant, the Defendant informed his trial counsel (Ms. Orrs) about Ms. Williams, from the beginning
of jury selection, the Defendant does not know why his counsel did not bring the matter to court's attention.
Ground Four: The trial court erred in permitting four (4) of Petitioner's prior burglary convictions to be presented to the jury, as established by this court in State v. James, 355, SC 25, 583 S.E.2d 745 (2003).
Supporting Facts: Despite objections from Petitioner's counsel, the trial court permitted all four of Petition [er]s prior burglary convictions to be presented to jury by the clerk of court (Trial Transcript) as in (James) [.] Mr. Bartoch's objective further, stating that such interpretation, in essence “change the nature of the crime. Here the nature of crime is not, is not changed[.] It doesn't go from a burglary third to burglary second. Here it goes to life without parole (Transcript p 11).
B. Standard for Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. Id. at 255.
The moving party has the burden of proving 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 Fed.R.Civ.P. 56(c), set forth specific facts showing there is a genuine dispute for trial.
C. Analysis of Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) Bar
1. AEDPA's Statute of Limitations
Respondent argues in his motion, inter alia, that the petition was not timely filed under the one-year statute of limitations and that the new evidence Petitioner discovered does not provide a valid basis for extending the statute of limitations. [ECF No. 30 at 7-9, 12-13]. Because Petitioner filed his petition after the effective date of the AEDPA, review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Noland v. French, 134 F.3d 208, 213 (4th Cir. 1998). The AEDPA modified procedures for consideration of habeas corpus petitions of state inmates in the federal courts under 28 U.S.C. § 2244 to establish a one-year statute of limitations for filing of habeas petitions. Subsection (d) of the statute provides:
(1) A 1-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 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.
(2) 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.28 U.S.C. § 2244(d). Pursuant to subsection (d)(1)(A), the one-year statute of limitations begins to run on the date the petitioner's conviction becomes final, not after completion of collateral review. Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000). The South Carolina Appellate Court Rules require a defendant to file a notice of appeal within 10 days of his conviction. Rule 203(b)(2), SCACR. Consequently, if a defendant fails to file a timely direct appeal, his conviction becomes final ten days after the adjudication of guilt. Crawley v. Catoe, 257 F.3d 395, 398 (4th Cir. 2001). If a defendant's conviction is affirmed on direct appeal, the conviction becomes final 90 days after the S.C. Supreme Court issues its final ruling. Harris, 209 F.3d at 328 n.1 (noting conviction becomes final on the expiration of the 90-day period to seek review by the United States Supreme Court from a state's highest court); cf Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002) discussing procedure for district court's sua sponte timeliness analysis, noting limitations period begins to run when time for filing certiorari in the United States Supreme Court has elapsed).
The statute of limitations is tolled while “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 remains tolled throughout the 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 of 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.
The tolling provisions in 28 U.S.C. § 2244(d)(2) only apply if the state collateral review action is “properly filed.” “[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) (footnote omitted). “When a postconviction petition is untimely under that 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)). Federal courts refer to Fed.R.Civ.P. 6(a) in computing periods of time under 28 U.S.C. § 2244(d)(2). Hernandez v. Caldwell, 225 F.3d 435, 439 (4th Cir. 2000).
Both the Supreme Court and the Fourth Circuit have recognized the AEDPA's statute of limitations is subject to the doctrine of equitable tolling. However, equitable tolling only applies in “those rare instances where-due to circumstances external to the [Petitioner's] own conduct-it would be unconscionable to enforce the limitation against the [Petitioner].” Harris, 209 F.3d at 330. The statute may be equitably tolled “only if [the petitioner] shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace, 544 U.S. at 418)).
The court should only consider the statute of limitations where the state has raised it as a defense. Hill, 277 F.3d at 705. Once the state has established the statute of limitations as a defense, the burden shifts to Petitioner to establish his petition is timely or he is entitled to the benefit of the doctrine of equitable tolling. Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003).
2. Petitioner Did Not Timely File His Federal Petition
The undersigned finds Petitioner did not timely file his petition. The one-year period of limitations under the AEDPA began to run at the “conclusion of direct review or the time for seeking such review.” 28 U.S.C. § 2244(d). In Petitioner's case, his one-year period of limitations began to run on March 20, 2001, the first day after the period expired for seeking certiorari review of the S.C. Supreme Court's decision with the United States Supreme Court. See Jimenez v. Quarterman, 555 U.S. 113, 116-19 (2009) (finding the date when time expired for seeking certiorari review of the decision in the petitioner's out-of-time appeal was the date on which direct review became final); see also Frasch v. Peguese, 414 F.3d 518, 521 (4th Cir. 2005) (“In the event the defendant does not file a petition for a writ of certiorari, the time for seeking [direct] review expires on the ninetieth day after the Court of Special Appeals denies the application for leave to appeal. See 28 U.S.C. § 2244(d)(1)(A); Harris v. Hutchinson, 209 F.3d 325, 328 n.1 (4th Cir. 2000). This is the day (or date) when the statute of limitations for filing a federal habeas petition begins to run.” (internal quotations omitted). The statute of limitations ran for 174 days, and was tolled on September 10, 2001, when Petitioner filed his first application for PCR. [ECF No. 34-7]. The statute of limitations continued to be tolled throughout the period that Petitioner's state PCR action was pending before the state trial and appellate courts. See 28 U.S.C. § 2244(d)(2); Taylor, 186 F.3d at 561. It began to run again on October 19, 2006, when the S.C. Supreme Court dismissed Petitioner's motion for a writ of certiorari and issued the remittitur. [ECF Nos. 34-14, 34-15]. At that point, Petitioner had 191 days (i.e., until April 30, 2007) within which to file a petition for a writ of habeas corpus in federal court.
Respondent states Petitioner filed his first application for PCR 264 days after his criminal case was final, but Respondent's calculation does not account for the 90-day period for direct review by the United States Supreme Court had expired.
Petitioner did not file a habeas petition in federal court and instead filed a petition for a writ of habeas corpus in state court on January 30, 2007. [ECF No. 34-16]. Because Judge Hayes found the petition was untimely [ECF No. 34-17], and the South Carolina Supreme Court agreed, Petitioner's filing of the state petition for a writ habeas corpus did not toll the statute of limitations. See Pace, 544 U.S. at 417 (“[W]e hold that time limits, no matter their form, are ‘filing' conditions. Because the state court rejected petitioner's PCRA petition as untimely, it was not ‘properly filed,' and he is not entitled to statutory tolling under § 2244(d).”). Petitioner's filing of a second PCR on July 18, 2008, also fell outside the AEDPA's statute of limitations and would not have tolled the statute even if it had been filed earlier, given Judge Hayes's order dismissing it based on its failure to comply with the state statute of limitations. ECF No. 34-22; see Pace, 544 U.S. at 417. Thus, the one-year statute of limitations expired on April 30, 2007, and Petitioner was barred by the AEDPA from seeking federal habeas corpus relief thereafter.
Nevertheless, even if the statute of limitations had been tolled a second and third time through Petitioner's collateral filings, it ultimately would have expired more than 10 years before he filed his third PCR application on March 28, 2019.
Even if the March 2, 2019 letter from Mr. Tuttle were to have restarted the one-year statute of limitations under 28 U.S.C. § 2244(d)(1)(D), the statute would have run for 25 days prior to Petitioner's March 28, 2019 filing of his third PCR application, would have been tolled during the pendency of his PCR application proceedings, and would have resumed on July 7, 2020, when the S.C. Supreme Court issued the remittitur. Petitioner would have had 340 days or until June 14, 2021, to file a petition for a writ habeas corpus in the federal court. However, Petitioner did not submit this petition to the prison mailroom until November 2, 2021, more than four months after the statute of limitations would have expired in this scenario. Therefore, Petitioner failed to satisfy the one-year statute of limitations for filing based on the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence pursuant to 28 U.S.C. § 2244(d)(1)(D).
Although the undersigned declines to address the specific grounds raised in the petition given Petitioner's failure to comply with the AEDPA's statute of limitations, it appears he would not be entitled to additional time under § 2244(d)(1)(D). Petitioner was aware of issues pertaining to his prior offenses and interaction with the juror and raised them in PCRs and a state petitioner for habeas corpus filed prior to 2019. See ECF Nos. 34-7, 34-8, 34-11, 34-16, 34-21. His discovery that the state's Great Seal was not attached to the statutes upon which he was convicted implicates no federal constitutional issue. “Matters of state law not involving federal constitutional issues are not appropriate grounds for federal habeas corpus relief.” Chance v. Garrison, 537 F.2d 1212, 1215 (4th Cir. 1976) (citing Grundler v. North Carolina, 283 F.2d 798 (4th Cir. 1960)). Therefore, the court should not address the absence of the Great Seal from the acts in question. Furthermore, Petitioner did not exercise due diligence in pursuing the issue because he could have contacted the South Carolina Department of Archives and History to inquire about the Great Seal's presence on the acts prior to 2019 and did not do so. See Gray v. Ballard, 848 F.3d 318, 323 (4th Cir. 2017) (rejecting the petitioner's argument that “he could not have known that the blood type in the report was incorrect until he discovered his true blood type in 1998, after undergoing testing for medical purposes” because “[b]lood typing technology existed for the entire length of his conviction, yet he claimed this new ‘discovery' after seven years had passed.”).
3. Petitioner is Not Entitled to Equitable Tolling
In his response in opposition to the motion for summary judgment, Petitioner neglects to address the statute of limitations under the AEDPA. See generally ECF No. 41. The only information Petitioner provides to explain why the one-year statute of limitations in 28 U.S.C. § 2244(d) does not bar his petition is “Covid 19.” [ECF No. 1 at 13].
President Trump declared a national emergency concerning the COVID-19 pandemic on March 13, 2020. Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, 85 Fed.Reg. 15337 (Mar. 18, 2020). Because COVID-19 was not present in 2007, it did not affect Petitioner's ability to timely file a petition for a writ habeas corpus in the federal court prior to the April 30, 2007 expiration of the statute of limitations. Although COVID-19 presented a national emergency from the time the S.C. Supreme Court dismissed Petitioner's third PCR application through the end of the one-year period, it continued to present a national emergency when Petitioner filed his petition. See Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic, 87 Fed.Reg. 10289 (Feb. 18, 2022).
Petitioner provides no specific argument as to why “Covid-19” prevented him from filing his habeas petition within 340 days of the S.C. Supreme Court's dismissal of his third PCR application, but no longer prevented him from filing it in November 2021. He has failed to show that he was “pursuing his rights diligently” or that “some extraordinary circumstance stood in his way” of timely filing a petition for a writ of habeas corpus. See Holland, 560 U.S. at 649; Pace, 544 U.S. at 418. In the absence of a specific explanation as to why COVID-19 prevented Petitioner from filing a petition within the AEDPA's statute of limitations, the undersigned finds no reason to equitably toll the deadline. Therefore, the COVID-19 pandemic serves as no valid reason for Petitioner's failure to file an action within the AEDPA's one-year statute of limitations.
III. Petitioner's Renewed Motion for Default Judgment
Petitioner previously filed a motion for default judgment, ECF No. 35, that the undersigned denied, ECF No. 37. Petitioner appears to renew his motion for default judgment in his response to the motion to dismiss, arguing Respondent failed to file the answer and return by April 14, 2022. [ECF No. 41 at 5]. Although the court initially directed Respondent to file a return and memorandum by April 14, 2022, ECF No. 15, Respondent moved for two extensions, ECF Nos. 23, 26, and the court granted the motions, ECF Nos. 24, 27, making the return and memorandum due by June 15, 2022. Respondent timely filed the return and memorandum on June 15, 2022, ECF No. 31, therefore default is not warranted.
IV. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends that Respondent's motion for summary judgment [ECF No. 31] be granted and the petition be dismissed with prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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:
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).