Opinion
Civil Action 6:19-2156-MGL-KFM
05-13-2020
William Joe Phillips, Petitioner, v. Warden of Perry Correctional Institution, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The petitioner, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. 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.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the district court.
BACKGROUND
The petitioner is currently incarcerated at Perry Correctional Institution. He was indicted by a Greenville County grand jury in January 2013 for accessory before the fact of murder (app. 714-15). Cassandra Gorton represented the petitioner on the charge. A jury trial began on June 10, 2013, with the Honorable C. Victor Pyle, Jr., presiding (app. 1). On June 12, 2010, the jury returned a verdict of guilty as charged, and Judge Pyle sentenced the petitioner to life imprisonment (app. 650-54).
Direct Appeal
The petitioner appealed his conviction and sentence. David L. Paavola and Chief Appellate Defender Robert M. Dudek of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented the petitioner on appeal. On August 18, 2014, appellate counsel filed a final brief of appellant in the Court of Appeals of South Carolina raising the following issue: "The trial court erred when it failed to charge the jury that in order to establish criminal liability for accessory before the fact of murder, the Appellant's intent that a murder be committed by another must be proven beyond a reasonable doubt” (doc. 24-4 at 4). The State filed its final brief on August 14, 2014 (doc. 24-5). Appellate counsel filed a reply (doc. 24-6). The Court of Appeals of South Carolina issued an opinion affirming the conviction on March 4, 2015 (app. 656-59). The petitioner did not seek rehearing. The court issued the remittitur on March 24, 2015, which was filed with the Greenville County Clerk of Court on March 26, 2015 (doc 24-7).
PCR
On August 7, 2015, the petitioner filed an application for post-conviction relief (“PCR”) and asserted non-specific claims of ineffective assistance and “general flaws in officer's testimony” (app. 662). The State made a return on January 29, 2016, which was amended on August 8, 2016 (app. 671-79). Rodney Richey was appointed to represent the petitioner in the action. PCR counsel filed an amendment to the application on or about October 10, 2016 (app. 668-70). An evidentiary hearing was held December 6, 2016, before the Honorable John C. Hayes, III (app. 681). At the evidentiary hearing, PCR counsel advised the PCR court, “I've discussed with the attorney general we're going on ineffective assistance of counsel because of his educational level. That's all we're doing” (app. 685). At the conclusion of the hearing, Judge Hayes took the matter under advisement (app. 706), and, on December 21, 2016, Judge Hayes denied relief and dismissed the action with prejudice (app. 708-13). The petitioner appealed the denial of relief.
PCR Appeal
Appellate Defender Robert M. Pachak of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented the petitioner on appeal. On May 19, 2017, appellate counsel filed a Johnson petition in the Supreme Court of South Carolina and raised the following issue: “Whether trial counsel was ineffective in failing to investigate petitioner's limited mental abilities” (doc. 24-8). Appellate counsel also filed a petition to be relieved asserting that “in his opinion, the appeal [was] without legal merit sufficient to warrant a new trial” (doc. 24-8 at 6). By letter dated May 22, 2017, the Clerk of the Supreme Court advised the petitioner of the right under the no-merits brief process to file a pro se response to the Johnson petition and include “any issues [he] believe[d] the Court should consider in [the] appeal” (doc. 24-9). The petitioner did not file a pro se response. On October 6, 2017, the state supreme court denied the petition (doc. 24-10). The state court issued the remittitur on October 24, 2017, and it was filed by the Greenville County Clerk of Court on November 3, 2017 (doc. 24-11).
The Supreme Court of South Carolina “has approved the withdrawal of counsel in meritless post-conviction appeals, provided the procedures outlined in Anders v. California, 386 U.S. 738, (1967), were followed.” Johnson v. State, 364 S.E.2d 201, 201 (S.C. 1988).
Second PCR
While his first PCR action appeal was pending, the petitioner filed a second PCR action on July 20, 2017 (doc. 24-12). On or about October 9, 2018, the State made its return and moved to dismiss the action as untimely, successive, and barred by res judicata (doc. 24-13). On October 18, 2018, the Honorable Perry H. Gravely, acting as Chief Administrative Judge of the Thirteenth Judicial Circuit, issued a conditional order advising the petitioner that the action would be dismissed. In the conditional order, Judge Gravely allowed the petitioner 20 days in which to file a response and show cause why the order should not become final (doc. 24-14). The petitioner responded on December 19, 2018 (doc. 24-15) and also moved to amend his application (doc. 24-16). On January 9, 2019, Judge Gravely found the petitioner's response insufficient to prevent the conditional order from becoming final, found the application improperly successive and untimely, and dismissed the action (doc. 24-17). The petitioner filed an objection to the respondent's proposed final order on January 31, 2019 (doc. 24-18). The petitioner then appealed the denial of his second PCR action, and he filed his required explanation pursuant to Rule 243, SCACR, on March 7, 2019 (doc. 24-19). On June 27, 2019, the Supreme Court of South Carolina dismissed the notice of appeal, having found the explanation insufficient to allow additional proceedings (doc. 24-20). The state supreme court issued the remittitur on July 15, 2019, and it was filed by the Greenville County Clerk of Court on July 17, 2019 (doc. 24-21).
The rule requires:
If the lower court has determined that the post-conviction relief action is barred as successive or being untimely under the statute of limitations, the petitioner must, at the time the notice of appeal is filed, provide an explanation as to why this determination was improper. This explanation must contain sufficient facts, argument and citation to legal authority to show that there is an arguable basis for asserting that the determination by the lower court was improper. If the petitioner fails to make a sufficient showing, the notice of appeal may be dismissed.Rule 243, SCACR.
FEDERAL PETITION
On July 30, 2019, the petitioner filed his Section 2254 petition (doc. 1) in this court, raising the following grounds for relief:
Pursuant to Houston v. Lack, 487 U.S. 266 (1988), a prisoner's document is deemed filed at the moment of delivery to prison authorities for forwarding to the district court. Here, the date stamp on the envelope containing the petition indicates that it was received by the prison mailroom on July 30, 2019 (doc. 1-2).
Ground One: Actual Innocence.
Supporting Facts: I have never confessed to this crime there is no direct evidence I committed this crime. The only evidence is a statement from the State's witness who actually wrote 3 different statements, but the 1st one the witness confessed to committing the crime.
Ground Two: The Trial Court erred in refusing to give the proposed jury charge concerning the mental state required.
Supporting Facts: Trial counsel informed the Court she was unfamiliar with South Carolina law, but requested a jury
instruction concerning the mental state required for liability as an accessory after the fact. The Appeals Court said they don't decide what level of “intent” was necessary for conviction and further said “to the extent Petitioner argues the trial court erred in not including “criminal intent” language … the Court found the issue not preserved.
Ground Three: Ineffective Assistance of Counsel
Supporting Facts:
(1) failed to object to court failing to instruct on “criminal intent”
(2) failed to request a jury instruction on criminal intent, as a result Court of Appeals found the issue no preserved
(3) failed to enter state witness Jerry Allens 1st and 2ndstatements after the State introduced his 3rd statement and jury requested 1st & 2nd
(4) failed to object to solicitor vouching during closing argument that bolstered the State's case
Ground Four: Trial Counsel failed to object to the trial courts malice instructions that shifted the burden.
Supporting Facts: during the trial courts malice instructions the courts malice charge was “incomplete, erroneous, confusing, and misleading that lessened the State's burden of proof in violation of due(Doc. 12-1 at 5-10).
On January 13, 2020, the respondent filed a motion for summary judgment and a return (docs. 24, 25). On January 14, 2020, by order filed pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975), the petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion (doc. 26). On February 13, 2020, the petitioner filed a motion for an extension of time to file his response (doc. 28), and, on February 14, 2020, the undersigned granted his motion through March 16, 2020 (doc. 29). On March 19, 2020, the petitioner filed a second motion for an extension of time to file a response (doc. 33). On March 23, 2020, this court granted the second motion for extension through April 22, 2020 (doc. 34). The petitioner did not file a response. On April 24, 2020, the undersigned issued an order giving the plaintiff through May 14, 2020, to file his response and advising him that if he failed to respond, this action would be subject to dismissal for failure to prosecute (doc. 36). The petitioner filed his response in opposition on May 4, 2020 (doc. 38), and the respondent filed a reply on May 11, 2020 (doc. 40).
APPLICABLE LAW AND ANALYSIS
Summary Judgment Standard
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment 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). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
Timeliness
The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Accordingly, the provisions of the AEDPA apply. Lindh v. Murphy, 521 U.S. 320, 336-37 (1997). The respondent first argues that the petition is untimely under the one-year statutory deadline set forth in the AEDPA. This court agrees. The one-year time period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). However, “[t]he time during which a properly filed application for State post-conviction or collateral relief with respect to the pertinent judgment or claim that is pending shall not be counted toward any period of limitation under this subsection.” Id. § 2244(d)(2). State collateral review tolls the one-year statute of limitations under Section 2244(d)(1)(A) for properly filed pleadings, Artuz v. Bennett, 531 U.S. 4, 8 (2000), but it does not establish a right to file within one year after completion of collateral review. Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000).
As this court recommends that the petition be dismissed as untimely, the respondent's remaining arguments will not be addressed.
The statute provides other possible start dates for the one-year time period that are not relevant here. See 28 U.S.C. § 2244(d)(1)(B)-(D).
The petitioner's conviction and sentence became final upon completion of his direct appeal on March 19, 2015. The Court of Appeals of South Carolina issued the opinion in the direct appeal on March 4, 2015. The petitioner had 15 days in which to file a petition for rehearing. Rule 221(a), SCACR. He did not file such a petition. Filing a petition for rehearing and obtaining ruling on the petition are conditions precedent to filing a petition for writ of certiorari in the Supreme Court of South Carolina. Rule 242(c), SCACR. See also 28 U.S.C. § 2244(d)(1)(A) (establishing that one-year runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review”); 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, the petitioner's failure to seek review in the Supreme Court of South Carolina prevented 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, the petitioner's conviction and sentence became final on March 19, 2015, and his time for filing his federal habeas petition began to run thereafter.
The petitioner filed his first PCR action on August 7, 2015 (app. 660). At that time, 141 days had lapsed since his conviction and sentence became final. The federal time was then tolled during the PCR action. The PCR action was completed, at the latest, when the PCR appeal remittitur was filed in the Greenville County Clerk of Court's office on November 3, 2017 (doc. 24-11). During the pendency of his first PCR action, the petitioner filed a second PCR action on July 20, 2017 (doc. 24-12). However, Section 2244(d)(2) tolling only applies if the application is considered “properly filed. “ 28 U.S.C. § 2244(d)(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.”). Because the second PCR action was untimely and successive (doc. 24-17), it could not be considered “properly filed” and, in turn, could not toll the federal time period. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (“Because the state court rejected petitioner's PCRA petition as untimely, it was not ‘properly filed,' and he is not entitled to statutory tolling under § 2244(d)(2).”).
At the time his first PCR action was completed on November 3, 2017, the petitioner still had 224 days in which to timely file his federal petition, making his deadline Friday, June 15, 2018. The petitioner filed the instant action on July 30, 2019, 411 days after the one-year statute of limitations expired. Consequently, this action is untimely.
Equitable Tolling
In his petition, the petitioner asserts that he is actually innocent of the crime and that he is entitled to an exception to the statute of limitations (doc. 12-1 at 13). The Supreme Court has established when a Section 2254 petitioner makes a “credible showing of actual innocence, ” he may avoid the statute of limitations bar. McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). “To invoke the miscarriage of justice exception to AEDPA's statute of limitations, . . . a petitioner ‘must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.'” Id. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). See Schlup, 513 U.S. at 324 (a petitioner must “support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial”). “Moreover, a petitioner must show factual innocence and not merely legal insufficiency.” Hutley v. Warden, Lieber Corr. Inst., C. A. No. 9:17-cv-2962-TMC, 2018 WL 3303283, at *3 (D.S.C. July 5, 2018) (citing Bousley v. United States, 523 U.S. 614, 623 (1998)). The petitioner has failed to point to any new evidence supporting his claim of actual innocence (see generally doc. 38). Accordingly, the petitioner's claim of actual innocence does not approach the standard necessary to overcome the statute of limitations as described in the above-cited cases.
The petitioner further argues that he is entitled to equitable tolling. To avoid application of Section 2244(d) regarding the timeliness of the instant federal habeas petition, the petitioner must show that the one-year limitations period should be equitably tolled under applicable federal law. See Holland v. Florida, 560 U.S. 631 (2010) (concluding that § 2244(d) is subject to the principles of equitable tolling); Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000) (same). “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citation omitted); see also Holland, 560 U.S. at 649. Equitable tolling is available only in “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. See also United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). The Fourth Circuit is clear that equitable tolling is only appropriate where a petitioner shows: “(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).
The petitioner first argues that he is entitled to equitable tolling because PCR is an inadequate corrective process because he did not receive effective assistance from his PCR counsel (doc. 38 at 3-4, 8-11). As argued by the respondent, the corrective process argument is part of exhaustion, not the timely filing of a petition. See 28 U.S.C. § 2254(b)(1)(B) (failure to exhaust may be excused where there is shown to be “an absence of available State corrective process”). Further, the petitioner's reliance on Martinez v. Ryan is misplaced as it has no bearing on the statute of limitations analysis, but can merely excuse a procedural default of an otherwise viable federal habeas claim. 566 U.S. 1, 9 (2012). Martinez does not recognize ineffective assistance of collateral counsel as a basis to excuse the untimely filing of a petition. See Pee v. McCall, C. A. No. 5:13-1275-MGL, 2013 WL 6150796, at *4 (D.S.C. Nov. 22, 2013) (collecting cases).
The petitioner further argues that he is entitled to equitable tolling because his PCR counsel “abandoned” him (doc. 38 at 4). In Holland, the Supreme Court found facts supportive of abandonment when counsel, who was appointed to represent Holland in all state and federal post-conviction proceedings, was instructed to file Holland's federal habeas action but did not do so; counsel apparently did not attempt to determine the date for timely filing; and counsel did not communicate with Holland even though Holland repeatedly wrote to him on the subject of federal habeas. 560 U.S. at 652. Here, as argued by the respondent, the petitioner's allegations do not show abandonment, but rather the petitioner's allegations are solely as to PCR counsel's decision to narrow the focus of the PCR action (doc. 38 at 4-5, 9). In contrast to Holland, it was up to the petitioner to file his federal habeas petition. Instead, he chose to file an untimely and successive state action. There is no suggestion that PCR counsel somehow prevented the act of filing the federal petition or caused the filing to be untimely.
Accordingly, the petitioner is not entitled to equitable tolling of the statute of limitations.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the petition is untimely under the one-year statutory deadline set forth in the AEDPA, and, therefore, the respondent's motion for summary judgment (doc. 25) should be granted.
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 300 East Washington Street 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).