Opinion
C. A. 8:22-cv-1205-RMG-JDA
06-02-2022
Sequoia McKinnon, Petitioner, v. Warden at Kershaw Correctional Institution Respondent.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
Sequoia McKinnon (“Petitioner”), proceeding pro se, brings this habeas corpus action under 28 U.S.C. § 2254. Petitioner is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is presently confined at the Kershaw Correctional Institution. [Doc. 1 at 1.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Judge. For the reasons below, this action is subject to summary dismissal.
BACKGROUND
The Petition and Attachments
Petitioner commenced this action by filing a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on the standard court form (the “Petition”) [Doc. 1] as well as approximately 165 pages of exhibits [Docs. 1-2; 1-3; 1-4; 1-5; 1-6; 1-7]. The exhibits attached to the Petition appear to be drafted by another SCDC inmate, Lawrence Crawford, and the documents appear to be related to Mr. Crawford's cases. Further, the undersigned notes that those documents have been filed in other actions pending in this Court. The exhibits include the following:
Indeed, in a cover letter attached to the Petition, Petitioner notes that he “had Mr. Crawford send this in for me.” [Doc. 1-1.]
• A petition for writ of certiorari purportedly filed in the United States Supreme Court by inmates Lawrence L. Crawford and Ron Santa McCray. [Doc. 1-2.]
• A motion to transfer cases to multidistrict litigation under 28 U.S.C. § 1407 purportedly filed in the United States Supreme Court by inmates Lawrence L. Crawford and Ron Santa McCray. [Doc. 1-3.]
• A second motion to transfer cases to multidistrict litigation under 28 U.S.C. § 1407 purportedly filed in the United States Supreme Court by inmates Lawrence L. Crawford and Ron Santa McCray. [Doc. 1-4.]
• An appeal from case number 2019-CP-08-1992 in the Berkeley County Court of Common Pleas purportedly filed in the South Carolina Supreme Court by inmates Lawrence L. Crawford and Ron Santa McCray. [Doc. 15.]
• Documents purportedly filed in a state court action by inmate Benjamin Eric Case in the Greenville County Court of Common Pleas at case number 2020-CP-23-01050. [Doc. 1-6.]
• A petition for writ of certiorari purportedly filed in the United States Supreme Court by inmate Arthur McQuilla. [Doc. 1-7.]
These documents are not related to Petitioner's criminal case or appeals, he is not identified in those documents, and he did not sign those documents.
Allegations from the Petition
The allegations in the Petition are difficult to decipher and Petitioner appears to provide a running narrative of his grievances throughout the Petition rather than answer the questions presented on the standard court form. [See, e.g., Doc. 1 at 3-4.] Nonetheless, the undersigned is able to glean the following pertinent information from the Petition. Petitioner pled guilty on June 22, 2016, in the Charleston County Court of General Sessions to the crimes of voluntary manslaughter and possession of a weapon during a violent crime. [Id. at 1.] Petitioner contends that he filed an appeal in the South Carolina Supreme Court at case number 2021-000309. [Id. at 2.] Petitioner alleges that he filed an application for post-conviction relief (“PCR”) at case number 2020-CP-10-2523 which remains pending at this time. [Id. at 4.]
The Court takes judicial notice of Plaintiff's state court actions including the original criminal proceedings, his applications for post-conviction relief, and his appeals from those actions. 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.'”).
As discussed below, it appears that Petitioner did not file a direct appeal from his conviction and sentence but instead filed an appeal from a post-conviction relief action filed in the state court.
Petitioner appears to assert the following ground for habeas relief in his Petition:
[There is] fraud upon the court, criminal conspiracy and acts of obstruction of justice on the part of the state courts involved and government including the S.C. Attorney General as well as on the part of also federal parties involved across multiple jurisdictions.[Id. at 5.] Although Petitioner repeats this allegation throughout his Petition, he does not provide any further explanation or any supporting facts. [Id. at 5, 6, 9, 10.] Instead,
Petitioner cites to the exhibits attached to the Petition, which are unrelated to his underlying criminal cases, and notes as follows:
This document is also filed as a motion to the multi-district panel to give that this case is sought to by notice to be transferred as a tag along case pursuant to 28 U.S.C. § 1407 as is argued. See attached pages for further explanation. The case was filed before the S.C. Supreme Court. Due to the fraud upon the court that occurred where that court to circumvent ruling fraudulently claimed that they did not know the issues that were being argued when it is clear from the U.S. Supreme Court petition the issues are indeed clear. Due to the magnitude of what is being argued, government officials conspired to compromise the U.S. Supreme Court itself. The Petitioner is presently working to correct this injustice. Since the Petitioner is not certain whether filing seeking writ of certiorari before the U.S. Supreme Court would toll his time to seek habeas corpus, in an abundance of caution, the Petitioner is filing this habeas corpus to lock in timeliness in case a future habeas corpus is needed. This document is also filed as a motion to stay this habeas corpus petition until these matters are given opportunity to be heard before the United States Supreme Court. The Petitioner gives the court judicial notice that this is one of the tag along cases referred to under case 9:21-cv-02526-TLW-MHC the Crawford case seeking to have these cases centralized for the purpose of 29 U.S.C. § 1407 transfer. The legal issues being argued are contain[ed] in the U.S. Supreme Court petition attached and the Petitioner seeks an extension of time to submit any additional issues that may need to be submitted once the S.C. U.S. District Court rules on the motion to stay this case pending U.S. Supreme Court review.[ Id. at 3-4.] Petitioner does not identify the relief he seeks in this Petition. [ Id. at 15.]
State Court Procedural History
Finally, by way of background, the undersigned notes the following procedural history of Petitioner's state court cases relevant to the Petition filed in this case.
In November 2013, Petitioner was charged in the Charleston County Court of General Sessions with murder at case number 2013A1010206201 and with possession of a weapon during the commission of a violent crime at case number 2013A1010206202. See State v. McKinnon, Nos. 2013A1010206201 and 2013A1010206202, available at the Charleston County Public Index, https://jcmsweb.charlestoncounty.org/ PublicIndex/PISearch.aspx (search by case numbers “2013A1010206201” and “2013A1010206202”) (last visited Jun. 1, 2022). In March 2014, a grand jury indicted Petitioner as to those charges at indictment numbers 2014GS1001130 and 2014GS1001131. Id.
On June 22, 2016, Petitioner pled guilty to the lesser included crime of voluntary manslaughter on the murder charge and to the charge of possession of a weapon during a violent crime as indicted. Id. That same day, the Honorable Deadra L. Jefferson sentenced Petitioner to a 30-year term of imprisonment on the voluntary manslaughter conviction and to a 5-year term of imprisonment on the weapons conviction. Id. Petitioner did not file a direct appeal from his convictions or sentence.
Petitioner filed his first PCR action in the Charleston County Court of Common Pleas on May 25, 2017, at case number 2017-CP-10-02656 regarding his conviction and sentence. See McKinnon v. State, No. 2017-CP-10-02656, available at the Charleston County Public Index, https://jcmsweb.charlestoncounty.org/PublicIndex/PISearch.aspx (search by case number “2017CP1002656”) (last visited Jun. 1, 2022). On February 13, 2019, the Honorable G. Thomas Cooper, Jr., entered an order of dismissal denying the PCR application. Id. On March 6, 2019, Petitioner filed a notice of appeal. Id. On March 18, 2021, an order denying writ of certiorari was entered on the PCR docket. Id.
On June 12, 2020, Petitioner filed a second PCR action in the Charleston County Court of Common Pleas at case number 2020-CP-10-02523. See McKinnon v. State, No. 2020-CP-10-02523, available at the Charleston County Public Index, https://jcmsweb.charlestoncounty.org/PublicIndex/PISearch.aspx (search by case number “2020CP1002523”) (last visited Jun. 1, 2022). That action remains pending at this time.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in the above-captioned case. The review was conducted pursuant to the procedural provisions of 28 U.S.C. § 1915, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. 104-132, 110 Stat. 1214, and 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, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Petitioner filed this action in forma pauperis under 28 U.S.C. § 1915. This statute authorizes the Court to dismiss a case if it is satisfied that the action fails to state a claim on which relief may be granted, is frivolous or malicious, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Further, this Court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts (2012). Pursuant to this rule, a district court is “authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994).
Because Petitioner is a pro se litigant, his 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) (per curiam). 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, 390-91 (4th Cir. 1990).
DISCUSSION
Habeas Corpus Generally
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Under § 2254, a federal court may issue a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
This action is subject to summary dismissal because Petitioner has not exhausted his state court remedies and because, even if he had exhausted his state court remedies or should be excused from doing so, this Petition is untimely under the applicable statute of limitations. The Court will address each issue in turn below.
Exhaustion of State Court Remedies
First, Petitioner has failed to exhaust his state court remedies. The exhaustion of state court remedies is required by 28 U.S.C. § 2254(b)(1)(A), which provides that “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that (A) the applicant has exhausted the remedies available in the courts of the State ....” 28 U.S.C. § 2254(b)(1); Straws v. Padula, No. 4:09-cv-009-HFF-TER, 2009 WL 691190, at *2 (D.S.C. Mar. 16, 2009). “The exhaustion requirement is ‘grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.'” Washington v. Cartledge, No. 4:08-cv-4052-PMD, 2010 WL 1257356, at *1 (D.S.C. Mar. 29, 2010) (quoting Coleman v. Thompson, 501 U.S. 722, 731 (1991)). As the Fourth Circuit Court of Appeals has explained, “a federal habeas court may consider only those issues which have been ‘fairly presented' to the state courts.” Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir. 1997) (instructing that, “to satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court. The burden of proving that a claim has been exhausted lies with the petitioner.”) (citations omitted).
A state prisoner seeking habeas relief ordinarily “must exhaust his remedies in state court” and must “give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts.” O'Sullivan v. Boerckel, 526 U.S. 838, 842, 845 (1999); see 28 U.S.C. § 2254(b) (explaining the exhaustion requirement). To exhaust state court remedies in South Carolina from a criminal conviction or sentence, a defendant may file a direct appeal. See State v. Northcutt, 641 S.E.2d 873 (S.C. 2007). If a direct appeal was filed and is ultimately unsuccessful (or if no direct appeal was filed), a petitioner may file a PCR application in a court of common pleas. See S.C. Code § 17-27-10, et seq. (1976); see also Miller v. Harvey, 566 F.2d 879, 880-81 (4th Cir. 1977) (noting that South Carolina's Uniform Post-Conviction Procedure Act is a viable state court remedy). If a South Carolina prisoner's PCR application is denied or dismissed by a court of common pleas, a petitioner can file a request for writ of certiorari with a South Carolina appellate court. See S.C. Code § 17-27-100; Knight v. State, 325 S.E.2d 535 (S.C. 1985). In fact, if a petitioner's PCR application is denied by a court of common pleas, the petitioner must seek appellate review in the state courts or federal collateral review of the grounds raised in his PCR application may be barred by a procedural default. See Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (finding that exhaustion requires state prisoners to complete at least one complete round of the state's established appellate review process by presenting the ground for relief in a face-up and square fashion).
Here, the Petition is subject to summary dismissal because Petitioner has failed to exhaust his state court remedies. As noted, Petitioner has filed a PCR action in the Charleston County Court of Common Pleas which remains pending at this time. Petitioner appears to contend that the issues he seeks to litigate in the present action are being considered by the state PCR court. Indeed, Petitioner acknowledges that he has not exhausted his state court remedies:
The Petitioner also gives the District Court judicial notice that the Petitioner still has a PCR case pending sub-judice that was filed under the independent action rule for fraud upon the court under case 2020-CP-10-2523 for which the petitioner may seek to withdraw this petition by leave of the Court where that pending case deals with jurisdictional claims that cannot be waived or forfeited which must be addressed by the state court before these proceedings can be allowed to proceed.[Doc. 1 at 4.] Therefore, because Petitioner's second PCR action remains pending in the state court, he cannot demonstrate exhaustion of his state remedies as required by the federal habeas statute. See Williams v. Dunlap, No. 8:11-cv-00645-JMC-JDA, 2011 WL 13177179, at *2 (D.S.C. Apr. 21, 2011), Report and Recommendation adopted by 2011 WL 13177174 (D.S.C. July 1, 2011). As such, this Court should not keep this case on its docket while Petitioner finishes exhausting his state remedies. Washington, 2010 WL 1257356, at *2 (explaining that dismissal was proper because “Petitioner simply cannot proceed with the instant petition until his application for post-conviction relief is ruled upon and a petition for a writ of certiorari is considered by the South Carolina Supreme Court”) (citing 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270 (1971); Galloway v. Stephenson, 510 F.Supp. 840, 846 (M.D. N.C. 1981)). For these reasons, the instant Petition is subject to summary dismissal without prejudice.
Statute of Limitations
Further, even if Petitioner had exhausted his state court remedies, his claims are subject to dismissal as time barred. Habeas actions are subject to a statute of limitations. 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). In South Carolina, if a defendant does not file a direct appeal, as in the present case, his conviction becomes final ten days after the adjudication of guilt. See Fleming v. South Carolina, No. 3:07-cv-3797-JFA-JRM, 2008 WL 5450273, at *4 (D.S.C. Dec. 31, 2008).
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 Petitioner's 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. As noted, Petitioner was convicted and sentenced on June 22, 2016. Petitioner did not file a direct appeal from his conviction or sentence. Because Petitioner did not file a direct appeal, his conviction became final on July 2, 2016, 10 days after the sentence was entered. See Rule 203(b)(2), SCACR; Crawley, 257 F.3d at 398. The AEDPA's one-year statute of limitations began to run on that date and continued to run until Petitioner filed his first PCR action.
As noted, Petitioner filed his first PCR application in the Charleston County Court of Common Pleas on May 25, 2017. When Petitioner filed his first PCR application, 327 days of non-tolled time had already lapsed. Thus, Petitioner had 38 days of non-tolled time remaining within which to timely file a federal habeas petition following the conclusion of the state court proceedings on his first PCR application.
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 December 6, 2018, and entered its order of dismissal on February 13, 2019. Petitioner filed a notice of appeal on March 6, 2019, and the South Carolina Court of Appeals, at case number 2019-000398, denied Petitioner's petition for writ of certiorari on February 23, 2021, and returned a remittitur on March 16, 2021. The remittitur was entered on the PCR court docket on March 18, 2021.
The tolled period for Petitioner's first PCR action concluded on March 16, 2021, when the Charleston County Clerk of Court filed the remittitur on the PCR docket. See Bannister v. Warden Lieber Corr. Inst., No. 6:20-cv-3998-MGL-KFM, 2021 WL 3493862, at *3 (D.S.C. July 6, 2021), Report and Recommendation adopted by 2021 WL 3493437 (D.S.C. Aug. 9, 2021); Walker v. Ozmint, No. 0:08-cv-0241, 2009 WL 250014, at *1 (D.S.C. Jan. 28, 2009) (discussing “the issue of whether the date that a post conviction relief proceeding becomes final is the date that the appellate court issues the remittitur, or the date that the lower court files the remittitur) (collecting cases); Beatty v. Rawski, 97 F.Supp.3d 768, 774 (D.S.C. 2015) (“South Carolina law states that the final disposition of an appeal does not occur until after the remittitur is filed in the circuit court.”). Thus, the one-year statute of limitations began to run again on March 18, 2021. As noted, Petitioner had 38 days of non-tolled time remaining, or until April 25, 2021, to file a federal habeas action.
Because April 25, 2021, was a Sunday, Petitioner would have had until the following day, April 26, 2021, to file his habeas action. See Fed. R. App. P. 26(a)(3) (explaining that where filing period ends on weekend, relevant period is extended to next business day).
Petitioner filed the instant habeas action on April 11, 2022. [Doc. 1-8 at 2 (envelope stamped as received in the Lee Correctional Institution Mail Room on April 11, 2022)]; see Houston v. Lack, 487 U.S. 266, 270-76 (1988) (explaining that a prisoner's pleading is filed at moment of delivery to prison authorities for forwarding to District Court). As such, Petitioner filed the instant Petition 351 days-more than eleven months-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.
As noted, Petitioner filed a second PCR action in the Charleston County Court of Common Pleas on June 12, 2020, which remains pending. Upon consideration, the undersigned concludes that Petitioner's second PCR action does not toll the statute of limitations because it was not properly filed. This is so because the PCR application appears 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)).
Equitable Tolling
Petitioner asserts that “equitable tolling attaches to this filing.” [Doc. 1 at 13.] However, Petitioner fails to advance a cognizable argument as to why he is entitled to equitable tolling. Instead, he simply reiterates the grounds for relief identified in the Petition and asserts “the South Carolina Supreme Court and the S.C. Attorney General engaged in egregious acts of fraud upon the court, criminal conspiracy and obstruction of justice to prevent and or circumvent ruling on the issues.” [Id.] He goes on to cite the issues raised in “the Crawford cases referred to within the attached documents” that were filed as exhibits to his Petition. [Id. at 14.]
Upon review, the undersigned concludes there is no evidence to warrant equitable tolling. “Equitable tolling applies only if a 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.'” Tascoe, 2017 WL 9250347, at *4. The Petition filed in this case fails to demonstrate that Petitioner has diligently pursued his rights and that some extraordinary circumstances stood in his way. See Rouse v. Lee, 339 F.3d 238, 251 (4th Cir. 2003) (dismissing the petition as untimely and rejecting the petitioner's “invitation to apply equitable tolling based on a factor that had nothing to do with his failure to file on time”). Petitioner's argument that equitable tolling attaches is simply a restatement of the merits of the grounds raised in his Petition. However,
[a]llowing consideration of the merits of time-barred claims to creep into the equitable tolling analysis lets petitioners effectively circumvent the statute of limitations because the merits of their claims will always be considered. This would enable petitioners who were in no way prevented from complying with the statute of limitations to create delay and undermine finality-two of the reasons that precipitated enactment of the AEDPA statute of limitations.Id. Accordingly, the Court finds Petitioner's equitable tolling argument to be without merit.
Motion to Intervene
Finally, Petitioner has filed a motion, which is captioned on the docket as a motion to stay and intervene. [Doc. 11.] The motion is signed by Petitioner and Mr. Crawford. [Id. at 7-8.] It appears to the undersigned that the motion is an improper attempt by Mr. Crawford, a frequent filer of frivolous actions in this Court, to use this action in an attempt to litigate his own claims that have been dismissed in other actions. In any case, because the undersigned recommends that the action be dismissed, the motion to intervene should also be denied as moot.
RECOMMENDATION
Accordingly, it is recommended that this action be dismissed without prejudice and without requiring the Respondent to file an answer or return. Additionally, it is recommended that Petitioner's motion to intervene be denied.
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).