Opinion
C. A. 4:23-4829-JFA-TER
10-31-2023
Alan L. Burns, #143218, Petitioner, v. Warden Wallace, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
Petitioner, a state prisoner, proceeding pro se and in forma pauperis, 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)(c) DSC. Having reviewed the petition in accordance with applicable law, the Court concludes that it should be summarily dismissed.
BACKGROUND
In Charleston County, Petitioner proceeded to trial “for sexual molestation and assault of various minor relatives of his in the 1980s and 1990s that were not disclosed to law enforcement until 2010” and was convicted on August 10, 2012 by a jury as indicted on all offenses: five counts of first-degree criminal sexual conduct with a minor (2011-GS-10-3390, 2011-GS-10-3391, 2011-GS-10-4776, 2011-GS-10-4777, 2012-GS-10-3172), two counts of second-degree criminal sexual conduct with a minor (2011-GS-10-3387, 2011-GS-10-3388), and five counts of lewd act upon a minor (2011-GS-10-3389, 2011-GS-10-3392, 2011-GS-4778, 2011-GS-10-4779,2012-GS-10-3173). Petitioner filed a timely direct appeal and the remittitur was received in the lower court on July 5, 2016. Petitioner filed a PCR on January 18, 2017. Petitioner appealed the PCR denial and the remittitur was received in the lower court on January 9, 2023. Liberally construed, the Lack date of the Petition is September 26, 2023. There are 457 days of untolled time.
See generally,https://jcmsweb.charlestoncounty.org/PublicIndex/? AspxAutoDetectCookieSupport=1 and https://ctrack.sccourts.org/public/caseSearch.do(with search parameters limited by Petitioner's name). The court may take judicial notice of factual information located in postings on government websites. See In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records); Williams v. Long, No. 07-3459-PWG, 2008 WL 4848362 at *7 (D. Md. Nov. 7, 2008) (noting that some courts have found postings on government websites as inherently authentic or self-authenticating).
Since the petition in this case is untimely, in an order (ECF No. 6) dated October 10, 2023, the undersigned directed the Petitioner as follows:
Upon initial review of the Petition, it appears from the face of the Petition that this case may be untimely filed. This order is notice to Petitioner that the court is considering dismissal of his case based on the running of the one-year statute of limitations. Unless the petitioner provides facts casting doubt on the issue of untimeliness of his Petition and thereby prevent dismissal based on the limitations bar, this case may be subject to dismissal. Accordingly, Petitioner is granted twenty-one (21) days to file a factual explanation with this court to show cause why his Petition should not be dismissed based on the application of the one-year limitation period established by 28 U.S.C. § 2244(d), including but not limited to, factual dispute regarding the relevant dates of filings in state court mentioned and/or facts supporting the application of equitable tolling. See Rouse v. Lee , 339 F.3d 238, 246 (4th Cir. 2003).(ECF No. 6)(emphasis in original). Additionally, the order cited law regarding the functioning of the habeas one-year statute of limitations. Petitioner responded stating he thought the preparation time after July 2016 and before January 2017 was not part of the 365 days towards the federal statute of limitations and that he thought the period of time only began on January 5, 2023 until 2024. (ECF No. 1-3 at 1-2).
DISCUSSION
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings and motion to proceed in forma pauperis pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).
With respect to his convictions and sentences, the petitioner's sole federal remedies are a writ of habeas corpus under either 28 U.S.C. § 2254 or 28 U.S.C. § 2241, which remedies can be sought only after the petitioner has exhausted his state court remedies. “It is the rule in this country that assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Claims not so raised are considered defaulted.” Beard v. Green, 523 U.S. 371, 375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)); see also 28 U.S.C. § 2254(b); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973); Picard v. Connor, 404 U.S. 270 (1971). The petition in the above-captioned case is untimely.
The AEDPA, 28 U.S.C. 2244(d) provides:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 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).
The Petition and public court records show the following periods of untolled time:
-July 5, 2016(the date the remittitur was received in the lower court on the direct appeal) to January 18, 2017 (the filing date of Petitioner's state PCR action) (197 days ran)
-January 9, 2023 (the date the remittitur was received on Petitioner's appeal of the denial of his PCR action) to September 26, 2023(the Houston v. Lack delivery date of the instant Petition) (260 days)
Accordingly, the Petitioner has 457 days of untolled time. This aggregate time period exceeds the one-year statute of limitations of 28 U.S.C. § 2244(d). See Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000). Therefore, the present petition is time-barred and should be dismissed on that basis.
The habeas statute of limitations is subject to equitable tolling if 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)(internal citation and quotation omitted). Petitioner states that he thought his preparation time between July 2016 and January 2017 were not part of the statute of limitations. (ECF No. 1-3). “Petitioner was of the belief that the one year started on January 5, 2023.” (ECF No. 1-3). Only a “properly filed” PCR “actually pending in state court” can toll time. McHoney v. South Carolina, 518 F.Supp.2d 700, 705 (D.S.C.2007). “To apply equity generously would loose the rule of law to whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation. We believe, therefore, that any resort to equity must be reserved for 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.” Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.2000). The circumstances Petitioner points to are not external to his own conduct. Principles of equitable tolling do not extend to garden variety claims of excusable neglect. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990). “[I]gnorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.” Beatty v. Rawski, 97 F.Supp.3d 768, 788 (D.S.C. 2015) (quoting Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.2000)). In response to the Court's order to show cause, Petitioner has not pleaded facts supportive of a grant of equitable tolling of the limitations found in 28 U.S.C. § 2244(d). Petitioner has not demonstrated that he pursued his rights diligently or that some extraordinary circumstances stood in his way to prevent him from timely filing his federal habeas petition. Petitioner is untimely. Therefore, the Petition should be dismissed as barred by the statute of limitations. Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002); see also Day v. McDonough, 547 U.S. 198 (2006).
The Petitioner's right to file objections to this Report and Recommendation and Petitioner's prior opportunity to respond to this court's order constitute opportunities to object to a dismissal of this Petition based on the statute of limitations. Hill v. Braxton, 277 F.3d at 707 (habeas case; timeliness may be raised sua sponte if evident from face of pleading, but petitioner must be given warning and opportunity to explain before dismissal). Cf. Bilal v. North Carolina, 287 Fed.Appx. 241, 2008 WL 2787702 (4th Cir. July 18, 2008).
RECOMMENDATION
Accordingly, it is recommended that the § 2254 petition be dismissed with prejudice and without requiring the respondent to file a return because the petition is untimely under the one-year limitations provision of the AEDPA, 28 U.S.C. § 2244(d).
Notice of Right to File Objections to Report and Recommendation
The petitioner is advised that he may file specific written objections to this Report and Recommendation with the District Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In the absence of a timely filed objection, a district court judge 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 & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005).
Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed.R.Civ.P. 6(a) & (e). Filing by mail pursuant to Fed.R.Civ.P. 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in the waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); and Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).