Opinion
C/A 22-1204-TLW-SVH
11-08-2022
Ron Santa McCray, #353031, Petitioner, v. Warden at Lieber Correctional Institution, Respondent.
REPORT AND RECOMMENDATION AND ORDER
Shiva V. Hodges, United States Magistrate Judge
Ron Santa McCray (“Petitioner”), proceeding pro se, filed this action seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motions to make a more definite and certain statement [ECF No. 48] and for summary judgment [ECF No. 67]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of these motions and dismissal procedures and the possible consequences if he failed to respond adequately. [ECF Nos. 53, 68]. Also before the court are multiple motions filed by Petitioner. [ECF Nos. 18, 22, 32, 35, 36, 42, 45, 57, 77].
For the reasons that follow, the undersigned recommends granting the motion for summary judgment in that the petition is barred by the applicable statute of limitations. Should the district judge agree with this recommendation, most of Petitioner's pending motions would be rendered moot. The remaining motion is denied, as discussed more below.
I. Factual and Procedural Background
Petitioner is an inmate incarcerated within the South Carolina Department of Corrections at Liber Correctional Institution. [See ECF No. 1 at 1]. Petitioner was indicted at the July 2011 term of the Berkeley County Grand Jury for one count of murder, proceeded to a jury trial where he was found guilty as indicted, and sentenced by the Honorable Kristi Lea Harrington, Circuit Court Judge, to a term of life imprisonment. [ECF No. 665 at 93-97].
A notice of appeal was filed on Petitioner's behalf and an appeal was perfected by James Falk, Esq. State v. McCray, 773 S.E.2d 914 (S.C. Ct. App. 2015). In this appeal, Petitioner challenged the circuit court's decisions to allow a witness to testify as an expert in DNA analysis, to deny his request to admit evidence concerning the decedent's criminal history, and to deny his request to conduct certain cross-examination of two witnesses. Id. at 920. The South Carolina Court of Appeals (“Court of Appeals”) affirmed Petitioner's conviction and sentence in a published opinion on June 24, 2015. See id. The remittitur was issued on July 14, 2015. [ECF No. 66-10].
Petitioner filed an application for post-conviction relief (“PCR”) on November 25, 2015, and an amended application on August 11, 2016, in which he challenged actions taken, or not taken, by both his counsel and the prosecution during his trial. [ECF No. 66-4 at 47, 84, see also id. at 86, 92, ECF No. 66-5 at 71-72]. Respondent made its return on June 9, 2016. Id. at 85-91. An evidentiary hearing into the matter was convened on August 2, 2017, at the Charleston County Courthouse before the Honorable Michael Nettles, Circuit Court Judge (“the PCR Court”). [ECF No. 66-4 at 95]. Lance Boozer, Esq., represented Petitioner. Id. Lindsey McCallister, Esq., of the South Carolina Attorney General's Office, represented Respondent. Id. At the hearing, Petitioner testified on his own behalf, along with his trial counsel Christopher Biering, Esq.. Id. at 96. On September 6, 2017, the PCR Court denied and dismissed the PCR application with prejudice by order of dismissal filed September 14, 2017. [ECF No. 66-5 at 68-92].
Petitioner appealed the denial of his first PCR application by way of a Johnson petition for writ of certiorari filed in the South Carolina Supreme Court, received by the court on July 30, 2018. [ECF No. 66-11]. The Johnson petition focused on Biering's failure to object to certain hearsay testimony. Id. at 2. Appellate counsel, Robert Dudek, certified the appeal was without merit and asked to withdraw. Id. at 16. Petitioner filed a pro se response to the Johnson petition, received by the court on September 18, 2018. [ECF No. 66 12]. This response included further claims of ineffective assistance of trial counsel. See id.
A Johnson petition is the state PCR appeal analogue to an Anders brief, a brief filed pursuant to Anders v. California, 386 U.S. 738 (1967), and effectively concedes the appeal lacks a meritorious claim. See Johnson v. State, 364 S.E.2d 201 (S.C. 1988).
The South Carolina Supreme Court transferred the appeal to the Court of Appeals, dated September 19, 2018. [ECF No. 66-13]. The Court of Appeals denied certiorari and granted appellate counsel's request to withdraw. [See ECF No. 66-14]. The remittitur was issued on August 5, 2020, and filed August 7, 2020. [ECF No. 66-15].
Petitioner's request that the remittitur be recalled was denied by the Court of Appeals on September 2, 2020. [ECF No. 66-14]. Petitioner then tried to file a petition for writ of certiorari in the South Carolina Supreme Court, but it was denied on December 8, 2020 (filed December 15, 2020), because the South Carolina Supreme Court had already transferred the appeal to the Court of Appeals. Id.
Petitioner filed a subsequent PCR application, prior to resolution of his first, the court received on August 8, 2019. [ECF No. 66-16]. The state sought to dismiss the application on the basis it was time barred and improperly successive. [ECF No. 66-17]. In an order filed April 23, 2021, the Honorable Roger M. Young, Circuit Court Judge, conditionally dismissed the second PCR application on the grounds it was time barred and improperly successive under state law “unless Applicant can provide a sufficient reason why he should be allowed to proceed forward on this untimely action” and “sufficient reasons why the successive action should be allowed to proceed forward” within twenty days. [ECF No. 66-18 at 5, 8]. In response, Petitioner asked his case to be transferred to the “3rd. Circuit Court of Appeals,” along with numerous other cases including a case involving Lawrence Crawford (“Crawford”), arguing the cases, and orders issued in those cases, “involve[] . . . fraud upon the court and unconstitutional action which presents a challenge to the court's jurisdiction rendering those orders void for that unconstitutional action as well as the convictions attached to them.” [See, e.g., ECF No. 66-20 at 9, 16].
In this second PCR application, Petitioner argues in main part that the indictment, and therefore orders that followed including the order issued in his previous PCR case, are constitutionally defective and void. [See ECF No. 6616]. It appears that Petitioner's overarching argument is that most if not all criminal indictments and criminal complaints are likewise unconstitutional. See id. at 20 (“. . . we can add to this, the charge in the indictments or criminal complaints around the nation as conveying an unconstitutional message in both state and federal prosecutions ....”)]. Petitioner also presents arguments previously presented, for example, that challenge the circuit court's decision to allow a witness to testify as an expert in DNA analysis. See id. at 54.
Petitioner has also indicated in his second PCR action that he did not receive the conditional order of dismissal, requesting an additional twenty days to respond. [ECF No. 66-20 at 26]. Respondent has submitted documentation showing Petitioner was served with the conditional order on May 7, 2021. [ECF No. 66-19].
Respondent represents to the court that a final order of dismissal has not been entered in the second PCR action and, as a result, is still pending in the Circuit Court of Common Pleas in the state court of South Carolina. [ECF No. 66 at 50]. Likewise, records indicate that Petitioner's second PCR petition is pending in state court. See Berkeley County Public Index, C/A No. 2019-CP-080-1992, https://publicindex. sccourts.org/Berkeley/PublicIndex/PISearch. aspx (last visited on November 8, 2022). A federal court may take judicial notice of factual information located in postings on governmental websites in the United States. Mitchell v. Newsom, C/A No. 3:11-0869-CMC-PJG, 2011 WL 2162723, at *3 n.1 (D.S.C. May 10, 2011), report and recommendation adopted, C/A No. 3:11-869-CMC-PJG, 2011 WL 2162184 (D.S.C. June 1, 2011).
Additionally, Petitioner filed in the South Carolina Supreme Court a petition for writ of certiorari and numerous other filings from November 20, 2020 to May 27, 2021. [See ECF No. 66-21]. These filings were dismissed by the South Carolina Supreme Court on August 6, 2021, pursuant to SCACR 245 and Key v. Currie, 406 S.E.2d 356 (S.C. 1991). Id. Petitioner then filed on August 29, 2021, along with Crawford, a document entitled In re: to Filing Petition to Invoke the S.C. Supreme Court's Original Jurisdiction for the Sake of Establishing 28 U.S.C. Section 1407 Transfer. [ECF No. 66-22]. The South Carolina Supreme Court dismissed the matter on August 11, 2022, pursuant to Key v. Currie, 406 S.E.2d 356 (S.C. 1991).
Petitioner informs the court that he and Crawford currently have a petition pending before the United States Supreme Court, but, in an abundance of caution, he filed the instant habeas petition because of concerns about timeliness. See id. at 3-4, see also id. at 16-60 (Supreme Court petition dated November 6, 2021).
Respondent has informed the court that Petitioner along with four other criminal defendants unrelated to his case, Arthur McQuilla, Orlando Parker, Christopher Darnell Wilson, and Crawford, jointly filed various filings in the United States Supreme Court raising the same issues he raises in this petition and others. After first granting an extension of time to file the petition until April 21, 2022, the Court then on June 23, 2022, denied a request to file the petition for writ of certiorari out of time. [ECF No. 66 at 50 n.10].
Petitioner filed the instant habeas petition on April 13, 2022. [See ECF No. 1]. Although not clear, Petitioner appears to assert the following grounds in support of his habeas petition, similar grounds asserted by him, Crawford, and others in their petition to the Supreme Court:
1. Do the United States Supreme Court holdings under Fortbent County Texas v. Davis, 139 S.Ct . 1843 (U.S. 2019) and Hall v. Hall, 138 S.Ct. 1118 . . . (U.S. 2018) apply to the states by the Petitioner(s) 5th. and 14th. Amendment rights under the U.S. Constitution as it pertains to the due process clause and their rights under the 14th. Amendment equal protection of the laws clause as it pertains to procedural processing rules and orders that trigger a judgment related to the Torrence ruling coming from the state of South Carolina?
2. [Does] the presence of Judge Kaye Hearn from the S.C. Supreme Court sitting upon these cases produce a constitutional structural error pursuant to Williams v. Pennsylvania, 136 S.Ct. 1899 . . . (U.S. 2016) where she is a defendant in the related cases that are sought 28 U.S.C. § 1407 transfer producing a potential for bias that rises to an unconstitutional level voiding the state court's jurisdiction under the constitutional prong to subject matter jurisdiction?
3. Do the United States Supreme Court holdings under Betterman v. Montana, 136 S.Ct. 1609 . . . (U.S. 2016), under Montgomery v. Louisiana, 136 S.Ct. 718 . . . (U.S. 2016), under Nelson v. Colorado, 137 S.Ct. 1249 . . . (U.S. 2017), and under Wearry v. Cain, 136 S.Ct. 1002. . . (U.S. 2016) apply to the Crawford case producing exceptional and or extraordinary circumstances where the other inmates are entitled to claims of non party res judicata and or collateral estoppel due to the state of South Carolina concealing, suppressing evidence of actual innocence in the form of DNA evidence and sled investigative file, also blocking Crawford from filing for post conviction relief behind religious and racial hatred for over (16) years without any judicial order determining why and the legal issues argued within all their cases are essentially the same and or identical?
4. Did the Petitioner(s) meet the criterion for establishing 28 U.S.C. § 1407 and 1455(c) transfer due to the seeking of disqualifying the 4th. Circuit seeking transfer to the state of New Jersey by the multi-district litigation rules?
5. By the recent and past rulings coming out of the United States Supreme Court since 2016, did the state courts abuse[] their discretion by adjudicating the issue of fatal defects of criminal indictment under the legislative prong to subject matter jurisdiction when due process law required that such issues be adjudicated under the constitutional prong to subject matter jurisdiction?[ECF No. 1 at 5-10, 17-18 (errors in original), see also ECF No. 36 at 4-10, ECF No. 70 at 5-13].
Following the filing of his petition, Petitioner has also filed numerous motions and supplements, including an April 27, 2022 motion to intervene, in which Petitioner and Crawford sought Crawford to intervene in the present case, the judges assigned to the instant case to recuse themselves, and this case be reviewed by a multi-district litigation (“MDL”). [ECF No. 8]. The court denied the motion on May 5, 2022. [ECF No. 11].
Thereafter, Petitioner filed nine motions, along with supplements, that are currently pending. First, on May 20, 2022, Petition filed what appears to be a renewed motion to intervene or motion to vacate the court's May 5, 2022 order. [See ECF No. 18, ECF No. 21]. Petitioner also renews his request for recusal and challenges the court's jurisdiction. [ECF No. 18 at 5]. Although not wholly clear, it appears that Petitioner seeks this court to stay and/or transfer the instant case, along with Crawford v. Atkinson, C/A No. 9:21-02526-TLW- MHC, to “the state of New Jersey” for MDL review and/or for this court to certify this instant suit as a class action. Id. at 8-11.
Crawford v. Atkinson, C/A No. 9:21-02526-TLW-MHC, was dismissed without prejudice on August 2, 2022, for failure to bring the case into proper form.
On June 3, 2022, Petitioner filed an additional motion with supplements. [ECF Nos. 22-25]. In it, Petitioner argues for default and forfeiture, based on Respondent's failure to substantively respond in this case and/or Respondent's alleged “default at the state level,” concerning Respondent's actions or inactions in cases other than the instant one. [ECF No. 22 at 2-4 (“The state of South Carolina and the Respondent that appears before this court were party to cases 2006-CP-400-3567, 3668, 3569; 2013-CP-400-0084 and their failure to challenge the fore stated facts must be deemed that they have conceded to the factual allegations of this case.”)]. Petitioner also seeks an evidentiary hearing and renews his motion to intervene, to transfer, and challenging the court's jurisdiction, arguing “if the district court engaged in such due process and or constitutional violations, its jurisdiction is void for the unconstitutional action.” Id. at 2, 4-5, 7.
Petitioner makes extensive references throughout his filings that appear to be “recycled” arguments as made by Crawford and other inmates in unrelated cases, including “challenges to federal law based upon the self-proclaimed law of ‘King Khalifah.'” See, e.g., Duren v. Hood, C/A No. 2:17-1127-JMC-MGB, 2018 WL 3687977, at *9 (D.S.C. July 2, 2018), report and recommendation adopted, C/A No. 2:17-01127-JMC, 2018 WL 3660094 (D.S.C. Aug. 2, 2018); see also id. (“this Court does not have jurisdiction over religious disputes”) (citing Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-12 (1976); EEOC v. Roman Catholic Diocese of Raleigh, N.C. , 213 F.3d 795, 804-05 (4th Cir. 2000)). For example, Petitioner argues at length that an issue before the state court, or this court, is the “issue of Crawford being the foreign sovereign heir king, khalifah, imam, and nazarite high priest of Christianity, Judaism and Islam and the legal issues in question being his intellectual property as is for same sex marriage . . . .” [See, e.g., ECF No. 22 at 7-18].
On June 23, 2022, Respondent filed a first motion for extension of time to make a return or otherwise plead to Petitioner's habeas petition, which the court granted the same day, enlarging the time for Respondent to respond from June 24, 2022, to July 25, 2022. [ECF Nos. 12, 29, 30].
Petitioner filed an opposition to Respondent's motion for extension of time, arguing Respondent did not have until June 24, 2022, to make a response and also appearing to move for extension of time. [ECF No. 32]. The court construed Petitioner's filing, in part, as a motion for extension of time, allowing Petitioner until August 1, 2022 to file a reply concerning his pending motion for default judgment. [ECF No. 33].
The court issued order on May 5, 2022, directing Respondent to respond by June 24, 2022. [ECF No. 12]. Petitioner argues, with unclear reasoning, that this order was not issued and in so doing makes several allegations concerning the undersigned. [See, e.g., ECF No. 35 at 2-8 (“What in the world are you doing Judge Hodges issuing an order granting the respondent an extension of time to respond when the respondent already responded twice and fell flat on his face ....your order is designed to conceal the[se] material facts ....”)].
On July 5, 2022, Petitioner filed two additional motions: (1) a “motion to vacate 30 order on motion for extension of time,” concerning the court's June 23, 2022 order, and (2) a “motion to challenge the district court jurisdiction to issue a report and recommendation.” [ECF Nos. 35, 36]. In the former motion, Petitioner explains that the court should not have granted Respondent's motion for extension of time where Respondent “fail[ed] to properly answer and rebut the factual allegations of this case, not once, but twice” and therefore is in default. [ECF No. 35 at 2]. The latter motion addresses Magistrate Judge Jacquelyn D. Austin and appears to be a recycled filing from McKinnon v. South Carolina, C/A No. 8:22-1205-RMG-JDA, a case in which it appears that Crawford also attempted to intervene. [See ECF No. 36].
McKinnon v. South Carolina, C/A No. 8:22-1205-RMG-JDA, was dismissed without prejudice on July 14, 2022, in that the claims presented were time-barred.
On July 22, 2022, Respondent filed a second motion for extension of time to make a return or otherwise plead to Petitioner's habeas petition, which the court granted on July 25, 2022, enlarging the time for Respondent to respond from July 25, 2022, to August 24, 2022. [ECF Nos. 39, 40].
On July 25, 2022, Petitioner filed an additional “motion for an extension of time to respond and be given full opportunity to litigate and move to strike the July 7, 2022 Respondent pleading,” in which Petitioner also reiterates many of the same arguments made in prior motions particularly as to the court's May 5, 2022 order denying Petitioner and Crawford's motion for Crawford to intervene. [ECF No. 42 at 3]. On August 5, 2022, Plaintiff filed an additional motion, reiterating again arguments made in previously-filed motions, particularly regarding the court granting Respondents' now two motions for extension of time. [ECF No. 45].
On August 11, 2022, Petitioner filed a writ of mandamus with the Fourth Circuit in Case No. 22-1852. As relevant here, Petitioner seeks the following:
That Judge(s) Hodges, Cherry, Wooten, Gergel and any other relevant judge recuse themselves and transfer the related cases to Judge Austin in before whom we seek to invoke the magistrate state and seek her jurisdiction over all matters.[See, e.g., ECF No. 59 at 18-19].
Petitioner also addresses the issue of his motion for Crawford to intervene, an issue he has directly appealed, as discussed more above.
On August 18, 2018, Respondent filed a motion to make a more definite and certain statement pursuant to Fed.R.Civ.P. 12(e) and/or to dismiss without prejudice pursuant to Fed.R.Civ.P. 41(a)(1) & (2) or Rose v. Lundy, 455 U.S. 509 (1982). [ECF No. 48]. The court directed Petitioner to respond to this motion by September 23, 2022. [ECF No. 53]. Respondent filed a third motion for extension of time, which the court granted, setting Respondent's deadline to make return or otherwise plead by September 21, 2022. [ECF Nos. 50, 51].
On August 31, 2022, Petitioner filed a motion for extension of time to respond to Respondent's August 18, 2018 motion and to reply in support of Petitioner's motion filed on August 5, 2022. [ECF No. 57]. In this motion, Petition argues that because he has filed a writ of mandamus in the Fourth Circuit against the undersigned as well as other judges in this district, this court is now divested of jurisdiction until the Fourth Circuit addresses the pending litigation. See id. Petitioner also notes that other filings he has made are “sufficient to answer and rebut many concerns the respondent had ....” Id. at 4.
On August 25, 2022, Petitioner filed a document with the court, renewing all previously filed motions, challenging, at length, rulings made by judges in this district in other cases, “recycling” previously made arguments made in other cases, and challenging his conditions of confinement. [See ECF No. 55].
On September 19, 2022, Petitioner filed a notice of appeal to the Fourth Circuit concerning this court's May 5, 2022 order denying his motion for Crawford to intervene. [ECF No. 61]. On September 21, 2022, Respondent filed its motion for summary judgment. [ECF Nos. 66, 67]. As stated above, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the motion for summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 68].
On September 26, 2022, Petitioner filed a motion to stay and to supplement the writ of mandamus. [ECF No. 70]. The court denied Petitioner's motion to the extent that it sought a stay, reminding Petitioner to respond to Respondent's motion for summary judgment no later than October 24, 2022. [ECF No. 71].
On October 3, 2022, Petitioner filed a document, and, the following day, the court issued an order noting that the court was in receipt of the filing, granting Respondent's previously-submitted request to stay the case until resolution of Respondent's dispositive motions, and directing Petitioner to respond to Respondent's currently-pending dispositive motions or to inform the court that his September 26, 2022 filing-captioned in part as response in opposition to motion for summary judgment-is his response. [ECF Nos. 73, 74].
In response, Petitioner filed a motion to hold in abeyance the court's order dated October 4, 2022. [ECF No. 77]. The court issued an order on October 28, 2022, reminding Petitioner that his case has been held in abeyance until resolution of Respondent's dispositive motions, including the relief Petitioner sought in his October 4, 2022 motion. [ECF No. 78]. The court further construed Petitioner's October 26, 2022 filing, as well as his September 26, 2022 filing, as his responses to Respondent's pending dispositive motions. Id. Respondent was provided until November 4, 2022 to file a reply to the extent a reply was warranted. Id. No reply was filed.
II. Discussion
A. 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.
B. Habeas Corpus Standard of Review
Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v Dept of Soc Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
C. Statute of Limitations
The AEDPA substantially modified procedures for consideration of habeas corpus petitions of state inmates in the federal courts. One of those changes was the amendment of 28 U.S.C. § 2244 to establish a one-year statute of limitations for filing habeas petitions. Subsection (d) of the statute provides:
(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 postconviction 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) (emphasis added). The one-year statute of limitations begins to run on the date the petitioner's conviction becomes final, not after collateral review is completed. Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000).
Respondent argues Petitioner's claims are barred by the AEDPA one-year statute of limitations as follows:
Petitioner's conviction was final on June 24, 2015. The Remittitur was issued on July 14, 2015. Petitioner is entitled to 15 days to file a petition for rehearing. As a result, the AEDPA 1 year statute of limitations began to run 15 days from June 24, 2015, on July 8, 2015. Petitioner did not file his 1st Application for Post-Conviction Relief (PCR) until November 25, 2015. As a result, there was no pending action in state court from July 8, 2015 until November 25, 2015. As a result, 138 days expired on the AEDPA 1 year time clock. Petitioner had 227 days of un-tolled time remaining within which to timely file his federal habeas petition. The 1st PCR action tolled the AEDPA 1 year statute of limitations until the appeal from its denial ended and the Remittitur was issue and filed in the 1st PCR appeal. On July 14, 2020, . . . the South Carolina Court of Appeals, denied certiorari, in the 1st PCR appeal and granted PCR appellate counsel's request to withdraw. The Remittitur was issued on August 5, 2020 and filed August 7, 2020. As a result, the AEDPA 1 year statute of limitations began to run again on August 8, 2020.
It expired 227 days later on or about March 24, 2021. Petitioner did not file this federal habeas petition until April 11, 2022.[See ECF No. 66 at 53-54 (emphasis and citations removed)].
A review of the record shows that Petitioner's direct appeal with the Court of Appeals was denied on June 24, 2015. Petitioner had fifteen days within which to file a petition for rehearing pursuant to SCACR 221(a). He did not file a petition for rehearing. Filing a petition for rehearing and obtaining a ruling on the petition are conditions precedent to filing a petition for writ of certiorari in the Supreme Court of South Carolina. See SCACR 242(c) (“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.”); see also Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) (“We hold that, for a state prisoner who does not seek review in a State's highest court, the judgment becomes ‘final' on the date that the time for seeking such review expires.”); Muqit v. McFadden, C/A No. 8:14-3555-RBH, 2016 WL 4613398, at *4 (D.S.C. Sept. 6, 2016) (“Because Petitioner did not file a petition for rehearing or seek discretionary review in the South Carolina Supreme Court, his convictions became final fifteen days later . . . .”). Moreover, a petitioner's failure to seek review in the Supreme Court of South Carolina prevents him from meeting the jurisdictional requirements to seek review in the Supreme Court of the United States. Gonzalez, 565 U.S. at 154 (finding the 90-day period in which to seek review by the Supreme Court is not applied where habeas petition failed to appeal to the state's highest court); see Hammond v. Hagan, C/A No. 4:07-1081-JFA-TER, 2008 WL 2922860, at *3 (D.S.C. July 24, 2008) (petitioner who fails to seek review in state supreme court “is not entitled to an additional tolled time period of 90 days in which to seek certiorari review from the United States Supreme Court”). Thus, Petitioner's conviction and sentence became final on July 8, 2015, and his time for filing his federal habeas petition began to run thereafter.
Petitioner's time ran for 138 days until he filed his first PCR action on November 25, 2015, tolling the federal limitations period until the PCR appeal concluded. If the court uses the date most favorable to Petitioner, the tolled period extended from November 25, 2015, until August 7, 2020, when the Court of Appeals filed the remittitur concerning Petitioner's first PCR action. See Smith v. Warden of Perry Corr. Inst., C/A No. 8:18-2841-RMG, 2019 WL 1768322, at *2 (D.S.C. Apr. 22, 2019) (“The tolling period ends when the final state appellate decision affirming denial of the application is filed in the state circuit court.”) (citing Beatty v. Rawski, 97 F.Supp.3d 768, 780 (D.S.C. 2015) (finding that final disposition of a PCR appeal in South Carolina occurs when the remittitur is filed in the circuit court, and thus the statute of limitations is tolled until that time))).
Even if the court used the date December 15, 2020, when the South Carolina Supreme Court filed its order denying Petitioner's challenge to the resolution of this first PCR action [ECF No. 66-14], instead of August 7, 2020, when the Court of Appeals filed the remittitur concerning Petitioner's first PCR action, the petition would still be untimely.
Petitioner then had 227 days remaining, or until March 24, 2021, to file the instant petitioner for writ of habeas corpus. However, the court did not receive the instant petition until April 13, 2022, well out of time.
Petitioner argues that his second PCR action tolled the AEDPA one year statute of limitations, rendering his instant petition timely. However, Petitioner's second PCR action did not toll the AEDPA one year statute of limitations because it was not a properly-filed state PCR action and has been conditionally dismissed as time-barred and improperly successive under state law. See, e.g., Tascoe v. Warden, Lee Corr. Inst., C/A No. 2:17-235-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, C/A No. 2:17-235-CMC, 2017 WL 2240675 (D.S.C. May 23, 2017); Burt v. Eagleton, C/A No. 3:08-3110-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., C/A No. 8:06-2545-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 and citations omitted)).
This conclusion stands even though the state court's order is conditional and not yet final. As stated by this court in addressing the same issue:
To be sure, the PCR court's ruling is not yet final; one might reasonably question how much respect this Court must give a state court's conditional ruling about timeliness. The Court does not have to answer that question in this case. “[W]hen a state court has not clearly ruled on the timeliness of a state petition, it is the responsibility of the habeas court to consider whether the state postconviction petition was timely filed as a matter of state law.” Pettinato [v. Eagleton, 466 F.Supp.2d 641, 649 (D.S.C. 2006)] (citation and quotation marks omitted). A PCR application “must be filed within one year after the entry of a judgment of conviction or within one year after the sending of the remittitur to the lower court from an appeal or the filing of the final decision upon an appeal, whichever is later.” S.C. Code Ann. § 17-27-45(a).Thomas v. Newton, C/A No. 2:19-3179-MBS-MGB, 2020 WL 8970795, at *7 (D.S.C. July 24, 2020), report and recommendation adopted sub nom. Thomas v. McKendley Newton, Jr., C/A No. 2:19-3179-MBS, 2021 WL 1134759 (D.S.C. Mar. 24, 2021).
Here, the Court of Appeals issued its remittitur in the direct appeal on July 14, 2015. [ECF No. 66-10]. Petitioner was required to file any PCR application no more than a year after that, and Petitioner's second PCR application did not meet that requirement. Because an untimely PCR application is not properly filed for the purposes of § 2244(d)(2), it does not toll the statute of limitations. Thus, even if the PCR court's ruling did not control here, the result would be the same because the undersigned would reach the same conclusion about untimeliness.
Likewise, Petitioner's filings with the South Carolina Supreme Court pursuant to the court's original jurisdiction and dismissed under Rule 245, SCACR, and Key v. Currie, 406 S.E.2d 356 (S.C. 1991) do not impact the above analysis. Petitioner has provided no case law, nor is the court aware of any, that such filings would toll the applicable statute of limitations. To the extent these filings are appeals of orders issued in Petitioner's PCR actions, it appears that the South Carolina Supreme Court did not interpret these filings as a properly-filed appeal, indicating such filings would not toll the relevant statute of limitations. Additionally, it does not appear from the record that these filings were filed within the time the time period permitted by Rule 221(a) of the South Carolina Appellate Court Rules.
Based on the above, Petitioner's habeas petition is untimely under 28 U.S.C. § 2244(d).
The AEDPA's statute of limitations is subject to equitable tolling, which could, in effect, extend the final date for filing a habeas petition. Harris, 209 F.3d at 329-30. The Fourth Circuit has underscored the very limited circumstances in which equitable tolling of the AEDPA's limitations period will be permitted, holding that a habeas petitioner “is only entitled to equitable tolling if he presents (1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time.” Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc). Thus, rarely will circumstances warrant equitable tolling of the AEDPA limitations period:
[A]ny invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes. 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, 209 F.3d at 330.
In 2010, the United States Supreme Court considered the issue and also held that § 2244 “is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). The Holland Court reiterated its prior holding that the statute would 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, 560 U.S. at 649. An inmate asserting equitable tolling “‘bears a strong burden to show specific facts'” demonstrating that she fulfills both elements of the test. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (citing Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008)).
Although Petitioner has repeatedly argued that he is entitled to equitable tolling, his reasoning is unclear. [See ECF No. 70 at 19-23 (citing ECF No. 36)]. Petitioner invokes the concepts of fraud, conspiracy, and obstruction, but it is unclear how he was prevented from timely filing the instant petition. See id. Petitioner also appears to argue that because he has continuously filed various motions in various South Carolina courts, he is entitled to equitable tolling. See id. at 19 (“The Petitioner(s) and Intervenor Crawford constantly kept these matters before the S.C. Supreme Court ....”)]. However, the court has addressed Petitioner's various filings in state court above.
Petitioner appears to dispute the appropriateness of the transfer of his first PCR case from the South Carolina Supreme Court to the Court of Appeals. [ECF No. 70 at 20]. However, in many instances, as was the case with Petitioner's petition for writ of certiorari, the South Carolina Supreme Court will transfer the petition to the Court of Appeals for resolution pursuant to SCACR 243(1). If the petition is transferred to the Court of Appeals, resolution in that court is the final step that the prisoner must take in order to fully exhaust his state remedies before filing a habeas petition in this court. The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals, without more, is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction ReliefCases, 471 S.E.2d 454 (S.C. 1990).
In sum, the undersigned finds that equitable tolling of the statute of limitations is not merited. Petitioner has not submitted any facts showing he meets the Holland test. Based upon the foregoing, the petition was not timely filed and is barred by 28 U.S.C. § 2244(d)(1).
Given the recommendation above, it is unnecessary to address Respondent's additional arguments that (1) the court may dismiss this action pursuant to Rose v. Lundy, 455 U.S. 509 (1982), for failure to exhaust state remedies where Petitioner still has pending in state court a second PCR action, (2) the grounds currently asserted by Petitioner in his petition are procedurally barred, and (3) the grounds asserted are without merit. [See ECF No. 66 at 54-65].
D. Petitioner's Motions
Petitioner has filed numerous motions currently pending. Should the district judge adopt the undersigned's recommendation, the majority of Petitioner's pending motions would be rendered moot. However, in an abundance of caution, the undersigned addresses Petitioner's arguments concerning recusal.
The court has previously addressed Petitioner's arguments challenging the court's jurisdiction based on his filing a writ of mandamus with the Fourth Circuit, as well as his requests for a stay pending resolution of his appeal to the Fourth Circuit regarding the court's denial of his motion for Crawford to intervene in the instant case. [See ECF No. 71].
The Fourth Circuit has recognized that “there is as much obligation upon a judge not to recuse himself when there is no occasion as there is for him to do so when there is.” Nakell v. Attorney Gen. of N.C. , 15 F.3d 319, 325 (4th Cir.1994) (citations and quotations omitted); see also Code of Judicial Conduct, Canon 3A(2) (“A judge should hear and decide matters assigned, unless disqualified ....”). As the Ninth Circuit summarized:
This proposition is derived from the “judicial [p]ower” with which we are vested. See U.S. Const. art. III, § 1. It is reflected in our
oath, by which we have obligated ourselves to “faithfully and impartially discharge and perform [our] duties” and to “administer justice without respect to persons, and do equal right to the poor and to the rich.” 28 U.S.C. § 453. Without this proposition, we could recuse ourselves for any reason or no reason at all; we could pick and choose our cases, abandoning those that we find difficult, distasteful, inconvenient or just plain boring ....
It is equally clear from this general proposition that a judge may not sit in cases in which his “impartiality might reasonably be questioned.” 28 U.S.C. § 455(a); see also id. § 455(b) (enumerating circumstances requiring recusal). We are as bound to recuse ourselves when the law and facts require as we are to hear cases when there is no reasonable factual basis for recusal. See Clemens v. U.S. Dist. Ct., 428 F.3d 1175, 1179 (9th Cir.2005); Nichols v. Alley, 71 F.3d 347, 352 (10th Cir.1995). If it is a close case, the balance tips in favor of recusal. United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir.1993).United States v. Holland, 519 F.3d 909, 912 (9th Cir. 2008) (alterations and emphasis in original).
Recusal of federal judges is generally governed by 28 U.S.C. § 455. That statute provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). In the Fourth Circuit, this standard is analyzed objectively by considering whether a person with knowledge of the relevant facts and circumstances might reasonably question the judge's impartiality. United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003). For purposes of this statute, the hypothetical “reasonable person” is not a judge, because judges, who are trained to regard matters impartially and are keenly aware of that obligation, “may regard asserted conflicts to be more innocuous than an outsider would.” United States v. DeTemple, 162 F.3d 279, 287 (4th Cir.1998).
Section 455(a) does not require recusal “simply because of unsupported, irrational or highly tenuous speculation,” or because a judge “possesses some tangential relationship to the proceedings.” Cherry, 330 F.3d at 665 (internal quotation omitted). The Fourth Circuit recognizes that overly cautious recusal would improperly allow litigants to exercise a “negative veto” over the assignment of judges simply by hinting at impropriety. DeTemple, 162 F.3d at 287. Recusal decisions under 28 U.S.C. § 455(a) are “fact-driven and may turn on subtleties in the particular case.” Holland, 519 F.3d at 912.
The statute provides a list of specific instances where a federal judge's recusal is mandated, regardless of the perception of a reasonable observer. 28 U.S.C. § 455(b). For instance, a judge is disqualified “[w]here he has a personal bias or prejudice concerning a party.” 28 U.S.C. § 455(b)(1). Bias or prejudice must be proven by compelling evidence. Brokaw v. Mercer Cnty., 235 F.3d 1000, 1025 (7th Cir.2000). Additionally, a judge should recuse herself if:
Similarly, 28 U.S.C. § 144 mandates recusal when a party to a “proceeding in a district court” demonstrates by a timely and sufficient affidavit that the “judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party.” The procedures for seeking recusal under 28 U.S.C. § 144 differ from those under § 455(b)(1). Furthermore, where actual bias is demonstrated pursuant to 28 U.S.C. § 144, recusal will generally also be required in any event under 28 U.S.C. § 455(a)'s standard of an appearance of bias. Therefore, the standard stated herein focuses on 28 U.S.C. § 455.
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material witness in the proceeding.28 U.S.C. § 455(b)(5).
Petitioner seeks the recusal of multiple judges in this district, including the undersigned. As to the undersigned, it appears that Petitioner primarily seeks her recusal based on her denial to allow Crawford to intervene and granting Respondent's motions for extension of time. [See ECF No. 8-1 at 5, ECF No. 18 at 5, ECF No. 35 at 6-7]. Although Petitioner also makes allegations that, in the handling of these motions, the undersigned has engaged in or assisted Respondent in engaging in conspiracy and fraudulent behavior [see, e.g., ECF No. 35 at 6], these allegations are “unsupported, irrational or highly tenuous speculation,” Cherry, 330 F.3d at 665, and are insufficient to warrant recusal of the undersigned in this matter.
Although Petitioner appears to argue otherwise, “[j]udges are authorized to decide motions for their own recusal.” Crawford v. Atkinson, C/A No. 9:21-02526-TLW-MHC, 2022 WL 3046896, at *3 (D.S.C. May 16, 2022) (collecting cases), report and recommendation adopted, C/A No. 9:21-02526-TLW, 2022 WL 3045128 (D.S.C. Aug. 2, 2022).
Accordingly, Petitioner's motions for recusal are denied. Although Petitioner argues for recusal in multiple motions, the motion docketed at ECF No. 18 is the first motion so arguing that is currently pending. For clarity, the court construes this motion as representative of Petitioner's position on recusal.
To the extent that Petitioner also seeks recusal of Judge Wooten, the district judge assigned to the instant case, or other judges in this district, Petitioner's motions are denied where he has offered no reason in support of recusal beyond those addressed above.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned denies Petitioner's motion for recusal. [ECF No. 18]. The undersigned also recommends that the district judge grant Respondent's motion for summary judgment, dismissing the pending petition as untimely filed. [ECF No. 67]. To the extent the district judge adopts this recommendation, the undersigned recommends all other pending motions be denied as moot.
IT IS SO ORDERED AND 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
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).