Opinion
8:22-cv-2200-SAL-JDA
08-23-2022
Deborah V. Hubbard, a/k/a Deborah Videtto Hubbard, a/k/a Deborah Hubbard-Sarvis, Petitioner, v. Warden, Camille Griffin Graham Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge.
Deborah V. Hubbard (“Petitioner”), proceeding pro se, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. [Doc. 1.] Petitioner is a prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and is presently incarcerated at the Camille Griffin Graham Correctional Institution. [Id. at 1.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) DSC, the undersigned magistrate judge is authorized to review such petitions for relief and submit findings and recommendations to the district court. The Petition is subject to summary dismissal for the reasons below.
BACKGROUND
Petitioner brings this habeas action to challenge her conviction for murder and sentence to a term of imprisonment of life without parole. [Id.] The Court takes judicial notice that Petitioner previously filed two other habeas actions pursuant to 28 U.S.C. § 2254 in this Court challenging the same conviction that she challenges in the present Petition. See Hubbard-Sarvis v. Condon, No. 2:02-cv-2675-TLW-RSC (“Hubbard-Sarvis I”) and Hubbard-Sarvis v. Condon, No. 2:02-cv-2699-FBH-RSC (“Hubbard-Sarvis II”). On September 4, 2002, Hubbard-Sarvis II was consolidated with Hubbard-Sarvis I. See Hubbard-Sarvis II, Doc. 2. By Order dated August 7, 2003, the Honorable Terry L. Wooten granted Respondent's motion for summary judgment and dismissed the consolidated action. Hubbard-Sarvis II, Docs. 17; 18.
The Court notes that the Petition consists of 186 pages. [Doc. 1.] The Petition is disorganized and includes numerous pages of various documents from Petitioner's underlying criminal case and her post-conviction relief (“PCR”) actions filed in the state court as well as various handwritten notes interspersed throughout these documents. The Petition, as filed, is difficult to decipher and the allegations are unclear.
See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
STANDARD OF REVIEW
A careful review has been made of the pro se Petition filed in this case under established local procedure in this judicial district and pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. 104-132, 110 Stat. 1214. This Court is charged with screening the Petition to determine if it plainly appears from the Petition and any attached exhibits that Petitioner is not entitled to relief in the district court. See Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts (2012).
Because Petitioner is a pro se litigant, her pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However, 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
DISCUSSION
As noted, Petitioner commenced this action by filing a Petition under 28 U.S.C. § 2254 for writ of habeas corpus on the standard court form along with numerous attachments including various documents from Petitioner's state court proceedings. [Doc. 1.] The Court has carefully reviewed the Petition and attachments as well as the records in Petitioner's state court proceedings and prior actions filed in this Court. For the reasons below, the Petition is subject to dismissal.
This action is successive.
This action should be dismissed because it is a successive § 2254 habeas action seeking to overturn the same conviction previously litigated on the merits, and Petitioner has not obtained permission from the United States Court of Appeals for the Fourth Circuit authorizing a successive § 2254 petition. As such, this Court does not have jurisdiction to consider Petitioner's successive § 2254 action.
Although § 2254 is the appropriate vehicle for a state prisoner to challenge a state conviction, relief under the statute is unavailable to Petitioner because the instant Petition is successive. On April 24, 1996, the AEDPA amended 28 U.S.C. § 2254 as follows:
[t]he AEDPA effected a number of substantial changes regarding the availability of federal postconviction relief to individuals convicted of crimes in federal and state courts. Of particular importance here are the provisions of the AEDPA codifying and extending judicially constructed limits on the consideration of second and successive applications for
collateral relief. Under the AEDPA, an individual may not file a second or successive § 2254 petition for a writ of habeas corpus or § 2255 motion to vacate sentence without first receiving permission to do so from the appropriate circuit court of appeals.In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (footnote omitted) (citing Felker v. Turpin, 518 U.S. 651 (1996)). The “gatekeeping” mechanism created by the AEDPA amended § 2244(b) to provide:
The prospective applicant must file in the court of appeals a motion for leave to file a second or successive habeas application in the district court. § 2244(b)(3)(A). A three-judge panel has 30 days to determine whether “the application makes a prima facie showing that the application satisfies the requirements of” § 2244(b).Felker, 518 U.S. at 657 (citing § 2244(b)(3)(c); §§ 2244(b)(3)(B), (D)). To be considered “successive,” the second or subsequent petition must be an attack on the same conviction attacked in the first petition, and the first petition must have been adjudicated on the merits. See In re Williams, 444 F.3d 233, 236 (4th Cir. 2006).
Here, this is the second Petition filed under § 2254 that Petitioner has submitted to this Court in her efforts to challenge the constitutionality of her state court criminal conviction and sentence. Petitioner's first petition seeking relief under 28 U.S.C. § 2254 was opened in this Court on August 23, 2002, and was dismissed on August 7, 2003, as the Court granted summary judgment to the Respondent. See Hubbard-Sarvis I, Docs. 1; 12; 17; 18. Because Petitioner's first Petition was dismissed on the merits, the present Petition, which attacks the same conviction and sentence, qualifies as a successive § 2254 action. See Sanders v. Hooks, No. 3:20-cv-00041-MR, 2020 WL 6749948, at *1 (W.D. N.C. Oct. 5, 2020) (“A dismissal of a habeas petition as time-barred is a decision on the merits, and any subsequent habeas petition challenging the same conviction or sentence is second or successive for purposes of § 2244(b).”); Legette v. McFadden, No. 6:13-cv-718-JFA-KFM, 2013 WL 4866335, at *1 (D.S.C. Sept. 11, 2013) (explaining a second habeas action under § 2254 is successive when the first habeas action was dismissed as time-barred).
The Court considers the consolidated petitions in Hubbard-Sarvis I and Hubbard-Sarvis II as the first Petition.
Section 28 U.S.C. § 2244(b)(2) provides that in some circumstances a petitioner may bring a second or successive § 2254 action. That statute permits a court of appeals to determine whether to authorize a successive petition. Thus, the United States Court of Appeals for the Fourth Circuit-not this District Court-is the proper tribunal to decide whether to authorize a successive § 2254. See United States v. Winestock, 340 F.3d 200, 205-06 (4th Cir. 2003). Because it appears that Petitioner did not obtain authorization from the Fourth Circuit Court of Appeals to file the Petition, this Court does not have jurisdiction to consider it. Id.
This action is time-barred.
This action also should be dismissed because it is time-barred under the statute of limitations applicable to habeas actions. Under the AEDPA, a petitioner has one year to file a petition for writ of habeas corpus. 28 U.S.C. § 2244(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 statute tolls the limitations period during the time “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2). The statute of limitations is tolled for the entire 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 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).
Although the limitations period is tolled during the pendency of a properly filed collateral attack on the subject conviction, the one-year statute of limitations begins to run on the date a petitioner's conviction becomes final, not at the end of collateral review. Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000); see also Crawley, 257 F.3d at 398 (evaluating when a conviction becomes final under South Carolina law); Myers v. Warden of McCormick Corr. Inst., No. 1:11-cv-450-TLW-SVH, 2011 WL 7143471, at *8 (D.S.C. Nov. 28, 2011) (same), Report and Recommendation adopted by 2012 WL 359733 (D.S.C. Feb. 2, 2012).
A federal court may raise the issue of the timeliness of a habeas petition sua sponte. Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002). As the Fourth Circuit has noted,
A district court has the discretion, but not the obligation, to consider on its own motion the timeliness of a habeas petition under AEDPA if (1) the parties have fair notice and an opportunity to be heard; (2) the state has not waived the limitations defense; (3) the “petitioner is not significantly prejudiced by the delayed focus on the limitation issue”; and (4) the court “determine[s] whether the interests of justice
would be better served by addressing the merits or by dismissing the petition as time barred.”Gray v. Branker, 529 F.3d 220, 241 (4th Cir. 2008) (alteration in original) (quoting Day v. McDonough, 547 U.S. 198, 209-11 (2006)). Once a court has raised the issue, it “must accord the parties fair notice and an opportunity to present their positions” on the issue. Day, 547 U.S. at 210.
Petitioner's right to file objections to this Report and Recommendation constitutes her opportunity to object to a dismissal of this Petition based on the statute of limitations. See Hill, 277 F.3d at 707; Bilal v. North Carolina, 287 Fed.Appx. 241, 248-49 (4th Cir. 2008).
Here, it appears from the face of the Petition that the action is time barred. The Horry County Grand Jury indicted Petitioner for murder in January 1992. [Doc. 1 at 10.] On March 19, 1992, a jury convicted Petitioner on the indicted charge of murder and the Honorable Sidney T. Floyd sentenced her to a term of life imprisonment. [Id.] Petitioner timely filed a direct appeal; the South Carolina Court of Appeals affirmed her conviction on October 4, 1994; and the South Carolina Supreme Court denied her petition for a writ of certiorari on May 18, 1995. [Id.]; see also State v. Sarvis, 450 S.E.2d 606, 609 (S.C. Ct. App. 1994).
Although the Court relies on the documents filed by Petitioner with her Petition, it has also independently reviewed Petitioner's state court records.
Petitioner filed her first PCR application in the Horry County Court of Common Pleas at case number 1995-cp-26-02696 on September 19, 1995. [Doc. 1 at 10.] The statute of limitations was tolled during the period of time during which Petitioner's first PCR application was pending in the state court. See 28 U.S.C. § 2244(d)(2); Taylor, 186 F.3d at 561; Crawley, 257 F.3d at 399. The PCR Court dismissed Petitioner's first PCR application on July 8, 1996. [Doc. 1 at 11.] Petitioner filed a notice of appeal, but “the South Carolina Supreme Court affirmed the dismissal of the PCR application.” [Id.]
This Court previously noted that “[t]he South Carolina Supreme Court denied certiorari in an unpublished Order filed on July 30, 1998.” Hubbard-Sarvis I, Doc. 12 at 5.
This Court previously summarized the calculation of the statute of limitations period applicable to Petitioner's conviction as follows:
Petitioner's first PCR began in 1995 and was pending until July 30, 1998, when the South Carolina Supreme Court denied certiorari. Petitioner then had until July 30, 1999, to file a petition in this court. She did not bring this or any other petition until after that date. Specifically, this habeas petition was not filed until July 30, 2002, after the running of the limitations period. Review therefore is barred here.Hubbard-Sarvis I, Doc. 12 at 8-9.
Petitioner filed the instant habeas action, at the earliest, on July 6, 2022. As such, Petitioner filed the instant Petition approximately 22 years after the expiration of the statute of limitations. Accordingly, the undersigned concludes based on the face of the pleadings that Petitioner's § 2254 Petition is barred by the applicable one-year limitations period. Because the Petition is time-barred, it should be dismissed. The undersigned further finds that the interests of justice would not be better served by addressing the merits of the Petition.
A prisoner's pleading is deemed filed at the moment of delivery to prison authorities for forwarding to District Court. See Houston v. Lack, 487 U.S. 266, 270-76 (1988). Here, Petitioner's documents and envelopes are not stamped with the date received by the prison mail room. The Court received the Petition on July 11, 2022. [Doc. 1 at 186.] The envelope is postmarked July 8, 2022. [Doc. 1-4 at 2.] The Petitioner dated the Petition as July 6, 2022. [Doc. 1 at 185.] Out of an abundance of caution, the Court uses the earliest date-the date on the Petition-as the filing date.
Petitioner filed additional PCR actions in the Horry County Court of Common Pleas at case numbers 1999-cp-26-04129, 2005-cp-26-00728, 2008-cp-26-04509, 2010-cp-26-11316, 2014-cp-26-00418, and 2019-cp-26-00989. Upon consideration, the undersigned concludes that these PCR actions do not toll the statute of limitations because they were not properly filed. This is so because those PCR applications appear to be successive under South Carolina law and, critically, in violation of the statute of limitations contained in S.C. Code Ann. § 17-27-45(A). See, e.g., Tascoe v. Warden, Lee Corr. Inst., No. 2:17-cv-235-CMC-MGB, 2017 WL 9250347, at *4 (D.S.C. Apr. 28, 2017) (explaining that “successive or untimely PCR applications are not ‘properly filed' for purposes of the AEDPA and do not toll any time under 28 U.S.C.A. § 2244(d)(2)”), Report and Recommendation adopted by 2017 WL 2240675 (D.S.C. May 23, 2017); Burt v. Eagleton, No. 3:08-cv-3110-SB, 2009 WL 2997069, at *5 (D.S.C. Sept. 17, 2009) (noting that “a State PCR proceeding must be ‘properly filed' for the statutory tolling provisions of § 2244(d)(2) to apply” and that “‘[w]hen a post-conviction petition is untimely under state law, it is not considered ‘properly filed.'” (citation omitted)); Jones v. Warden, Lieber Corr. Inst., No. 8:06-cv-2545-GRA-BHH, 2007 WL 1574153, at *5 (D.S.C. May 29, 2007) (noting the filing of a second PCR, which was untimely under the state's statute of limitations, did not toll the federal statute of limitations because the state PCR action was not properly filed); see also Ferguson v. State, 677 S.E.2d 600, 602 (S.C. 2009) (“Under the PCR rules, an applicant is entitled to a full adjudication on the merits of the original petition, or ‘one bite at the apple.'” (emphasis in original) (citations omitted)). Indeed, as to Petitioner's most recently filed PCR action, the South Carolina Supreme Court issued an Order dated May 17, 2022, with the following injunction:
[W]e hereby prohibit Petitioner from filing any further collateral actions in the circuit court, including post-conviction relief (PCR) actions and habeas corpus actions, as well as [any] motions relating to previously filed collateral actions, challenging Petitioner's 1992 conviction or sentence for murder, or any motions in the underlying criminal case . . . without first obtaining permission to do so from this Court.See Deborah Hubbard-Sarvis v. State, No. 2022-000354 (S.C. May 17, 2022).
RECOMMENDATION
Accordingly, for the reasons stated above, it is recommended that this action be dismissed without prejudice and without requiring the Respondent to file an answer or return.
IT IS SO RECOMMENDED.
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
250 East North Street, Suite 2300 Greenville, South Carolina 29601
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).