Opinion
C. A. 4:24-2823-DCC-TER
06-24-2024
Bryan Murray, #284701, Petitioner, v. Warden, Allendale Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner, proceeding pro se and in forma pauperis, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B) (2)(c) DSC. Having reviewed the petition in accordance with applicable law, the Court concludes that it should be summarily dismissed.
See generally, https://publicindex.sccourts.org/Richland/PublicIndex/PISearch.aspx(with search parameters limited by Petitioner's name). The court may take judicial notice of factual information located in postings on government websites. See In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records); Williams v. Long, No. 07-3459-PWG, 2008 WL 4848362 at *7 (D. Md. Nov. 7, 2008) (noting that some courts have found postings on government websites as inherently authentic or self-authenticating).
In Richland County, on June 4, 2002, Petitioner pleaded guilty to criminal conspiracy, attempted armed robbery, and armed robbery. (ECF No. 1 at 1-2). Petitioner did not file a direct appeal. Under SCAR Rule 203(b)(2), Petitioner's convictions became final ten days later. Petitioner filed a PCR on April 14, 2003. Petitioner appealed the PCR denial and the remittitur was received in the lower court on April 23, 2007. Petitioner filed a second PCR in 2019, which did not toll the running of AEDPA statute of limitations here, as discussed below. Liberally construed, the Lack date of the Petition is April 25, 2024. There are over 6,000 days of untolled time.
Since the petition in this case is woefully untimely, in an order (ECF No. 5) dated May 15, 2024, the undersigned directed the Petitioner as follows:
Upon initial review of the Petition, it appears from the face of the Petition that this case may be untimely filed. This order is notice to Petitioner that the court is considering dismissal of his case based on the running of the one-year statute of limitations. Unless the petitioner provides facts casting doubt on the issue of untimeliness of his Petition and thereby prevent dismissal based on the limitations bar, this case may be subject to dismissal. Accordingly, Petitioner is granted twenty-one (21) days to file a factual explanation with this court to show cause why his Petition should not be dismissed based on the application of the one-year limitation period established by 28 U.S.C. § 2244(d), including but not limited to, factual dispute regarding the relevant dates of filings in state court mentioned and/or facts supporting the application of equitable tolling. See Rouse v. Lee , 339 F.3d 238, 246 (4th Cir. 2003).(ECF No. 5)(emphasis in original). Additionally, the order cited law regarding the functioning of the habeas one-year statute of limitations. Petitioner responded to the Court's order and the court considers that response below.
DISCUSSION
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings and motion to proceed in forma pauperis pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).
With respect to his convictions and sentences, the petitioner's sole federal remedies are a writ of habeas corpus under either 28 U.S.C. § 2254 or 28 U.S.C. § 2241, which remedies can be sought only after the petitioner has exhausted his state court remedies. “It is the rule in this country that assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Claims not so raised are considered defaulted.” Beard v. Green, 523 U.S. 371, 375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)); see also 28 U.S.C. § 2254(b); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973); Picard v. Connor, 404 U.S. 270 (1971). The Petition in the above-captioned case is untimely.
The AEDPA, 28 U.S.C. 2244(d) provides:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a “properly filed” application for State post- conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. 2244(d).
The Petition and public court records show the following periods of untolled time: -June 14, 2002(the date Petitioner's convictions became final) to April 14, 2003(the filing date of Petitioner's state PCR action)(304 days ran)
-April 23, 2007(the date the remittitur was received and filed by the lower court on Petitioner's appeal of the denial of his PCR action) to April 25, 2024(the Houston v. Lack delivery date of the instant Petition)(over 6,200 days)
Accordingly, the Petitioner has several years of untolled time. This aggregate time period exceeds the one-year statute of limitations of 28 U.S.C. § 2244(d). See Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000). Therefore, the present petition is time-barred and should be dismissed on that basis.
The habeas statute of limitations is subject to equitable tolling if Petitioner “shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)(internal citation and quotation omitted). Petitioner has presented several “merit”-type arguments and equitable tolling arguments in regard to the statute of limitations. In response to question no. 18 of the Petition regarding timeliness, Petitioner states:
Petitioner filed Motion for Sentence Reconsideration on 7-27-23 due to discrepancy of the state failing to honor the original negotiated plea. Evidentiary hearing judge acknowledged discrepancies on sentencing sheet that correlated to sentence imposed but ruled that a timely appeal had not been filed. Petitioner claims 6th Amendment violation due to retained trial counsel failure to file timely notice of appeal without
Petitioner's consent. Petitioner claims 14th Amendment violation due to retained trial counsel failure to seek specific performance of guilty plea negotiated by the state.(ECF No. 1 at 13-14).
In Petitioner's response to the court's order, Petitioner argues that after the remittitur on his PCR was received in April 2007, he was placed in solitary confinement for six months. Petitioner states that after he returned to general population in 2007, some of his legal property was missing, which included his “federal habeas corpus application to be submitted to the court.” (ECF No. 8). Plaintiff alleges he grieved about this but did not receive it back. Petitioner does not allege any reason why he did not complete a new petition form in 2007 when he was placed back into general population; Petitioner makes conclusory allegations of “diligent efforts to timely file.” (ECF No. 8 at 1-2). Then, for the years 2008 to 2012, Petitioner alleges he was not able to “properly prepare” because of institutional lockdowns over those four years. (ECF No. 8 at 2). Petitioner makes no allegations for the years 2013 to 2019, over six years worth of time. Even if the court were to excuse the six months in solitary in 2007 and the four years from 2008-2012, Petitioner has not shown that he pursued his rights diligently or any extraordinary circumstance for the years after 2012.
The court does not equitably toll the time from 2007-2012; solitary and lockdowns, while an obstacle, are part of “routine restrictions of prison life” and do not warrant entitlement to equitable tolling. Jumper v. Warden of Broad River Corr. Inst., No. 1:15-cv-4848-JFA-SVH, 2016 WL 2893988, at *7 (D.S.C. Apr. 25, 2016), report and recommendation adopted, 2016 WL 2866306 (D.S.C. May 17, 2016)(collecting cases)(noting that even if the court excused the duration in solitary, the action would still be untimely).
Petitioner then alleges he filed various state court motions and a second PCR in 2019 and received a court order in February 2024. (ECF No. 8 at 2). To the extent Petitioner believes the filing of a successive, untimely PCR in the state court acts to toll the AEDPA statute of limitations, over eleven years of untolled time had passed between the first PCR final decision and the filing of the second PCR. Moreover, only a PCR which has been “properly filed” can toll time. Petitioner's second PCR has been dismissed because it was untimely, successive, barred by res judicata, and failed to make a prima facie showing of newly discovered evidence, and thus was not “properly filed.” See Pettinato v. Eagleton, 466 F.Supp.2d 641, 649 (D.S.C. 2006)(internal citation omitted)(if a state court has rejected a PCR as untimely under state law then the PCR was not “properly filed”); Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005)(rejection by state court of a PCR as untimely renders it not “properly filed”).
Overall, the allegations presented by Petitioner do not warrant equitable tolling, particularly the number of years between Petitioner's alleged reasons. “The doctrine of equitable tolling is not a license to suspend enactments of Congress whenever we happen to believe that enforcement of a limitations period would create a hardship.” Rouse v. Lee, 339 F.3d 238, 253 (4th Cir. 2003) Petitioner has not demonstrated that he pursued his rights diligently or that some extraordinary circumstances stood in his way to prevent him from timely filing his federal habeas petition. Petitioner is untimely by over a decade. This case is not one of 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;” no gross injustice results here. Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). Therefore, the Petition should be dismissed as barred by the statute of limitations. Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002); see also Day v. McDonough, 547 U.S. 198 (2006).
The Petitioner's right to file objections to this Report and Recommendation and Petitioner's prior opportunity to respond to this court's order constitute opportunities to object to a dismissal of this Petition based on the statute of limitations. Hill v. Braxton, 277 F.3d at 707 (habeas case; timeliness may be raised sua sponte if evident from face of pleading, but petitioner must be given warning and opportunity to explain before dismissal). Cf. Bilal v. North Carolina, 287 Fed.Appx. 241, 2008 WL 2787702 (4th Cir. July 18, 2008).
RECOMMENDATION
Accordingly, it is recommended that the § 2254 petition be dismissed with prejudice and without requiring the respondent to file a return because the petition is untimely under the one-year limitations provision of the AEDPA, 28 U.S.C. § 2244(d).
Petitioner's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The petitioner is advised that he may file specific written objections to this Report and Recommendation with the District Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In the absence of a timely filed objection, a district court judge need not conduct a de novo review, but instead must “only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005).
Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed.R.Civ.P. 6(a) & (e). Filing by mail pursuant to Fed.R.Civ.P. 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in the waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); and Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).