Opinion
C/A No. 0:16-2766-RBH-PJG
02-24-2017
James Spurgeon, Jr., Petitioner, v. Warden, McCormick Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Petitioner James Spurgeon, Jr., a self-represented state prisoner, 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) (D.S.C.) for a Report and Recommendation on the respondent's motion for summary judgment. (ECF No. 21.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised the petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the respondent's motion. (ECF No. 22.) Spurgeon filed a response in opposition (ECF No. 28), and the respondent replied (ECF No. 29). Having carefully considered the parties' submissions and the record in this case, the court finds that Spurgeon's Petition is barred by 28 U.S.C. § 2244(d) as untimely.
BACKGROUND
Spurgeon was indicted in September 1987 in Greenville County for murder (1987-GS-23-5180). (App. at 36-38, ECF No. 20-1 at 38-40.) Spurgeon was represented by Robert Ray, Esquire, and on September 24, 1987 pled guilty as charged. (App. at 39, ECF No. 20-1 at 41.) The circuit court sentenced Spurgeon to life imprisonment. (App. at 36, ECF No. 20-1 at 38.) Spurgeon did not appeal his conviction or sentence.
Spurgeon filed a pro se application for post-conviction relief ("PCR") on October 30, 2014. (Spurgeon v. State of South Carolina, 2014-CP-23-5942, App. at 1-14, ECF No. 20-1 at 3-16.) The State filed a return and motion to dismiss. (App. at 15-18, ECF No. 20-1 at 17-20.) On January 29, 2015, the PCR court issued an conditional order of dismissal. (App. at 20-22, ECF No. 20-1 at 22-24.) The State filed an amended return and motion to dismiss. (Supp. App. at 1-4, ECF No. 20-2 at 3-6.) On April 21, 2015, the PCR court held a hearing at which Spurgeon appeared and was represented by Brian P. Johnson, Esquire. By order filed May 5, 2015, the PCR court denied and dismissed Spurgeon's PCR application with prejudice, finding that it was untimely under the limitations provision of the Uniform Post-Conviction Procedure Act, S.C. Code Ann. § 17-27-45, and was barred by the doctrine of laches. (App. at 31-35, ECF No. 20-1 at 33-37.)
Spurgeon appealed. In his PCR appeal, Spurgeon was represented by Assistant Appellate Defender Robert M. Pachak, Esquire, who filed a petition for a writ of certiorari on his behalf. (ECF No. 20-4.) The State filed a return. (ECF No. 20-5.) By order filed July 18, 2016, the South Carolina Supreme Court denied Spurgeon's petition for a writ of certiorari. (ECF No. 20-6.) The remittitur was issued August 3, 2016. (ECF No. 20-7.)
Spurgeon filed the instant Petition for a writ of habeas corpus on August 4, 2016. (ECF No. 1.)
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly 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. at 248.
The moving party has the burden of proving that 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 the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Statute of Limitations
The respondent argues that Spurgeon's Petition is untimely under the one-year statutory deadline set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Generally, the statute of limitations for a habeas corpus petition is found in 28 U.S.C. § 2244(d)(1). However, the United States Court of Appeals for the Fourth Circuit has long recognized that when a habeas petitioner was convicted before the effective date of the AEDPA—April 24, 1996—the petitioner is permitted one year from the effective date of the AEDPA in which to file a federal habeas petition. See Brown v. Angelone, 150 F.3d 370, 375 (4th Cir. 1998). Accordingly, for Spurgeon, the limitations period began to run on April 25, 1996 and expired on April 24, 1997, unless the period was at any time tolled for any properly filed state PCR application. Hernandez v. Caldwell, 225 F.3d 435, 438-39 (4th Cir. 2000) (applying the anniversary date method in calculating the one-year limitation period in § 2244 and concluding that "the actual count on the limitations period began on April 25, 1996, and ended on April 24, 1997, excluding any time tolled"); see also 28 U.S.C. § 2244(d)(2).
Although Spurgeon filed a state PCR application on October 30, 2014, this application was filed after the expiration of the one-year limitations period under Brown v. Angelone. Moreover, even if the PCR application had been filed before the expiration of the deadline, it would not toll the statute of limitations because the PCR court dismissed it as untimely. Pace v. DiGuglielmo, 544 U.S. 408 (2005) (holding that a state PCR application that is rejected by the state court as untimely is not "properly filed" within the meaning of § 2244(d)(2) and therefore does not entitle the petitioner to statutory tolling). Therefore, Spurgeon's PCR application did not toll or revive the already expired statute of limitations for filing his federal habeas action and his statutory deadline expired on April 24, 1997.
Spurgeon's federal Petition was filed on August 4, 2016—over nineteen years after the expiration of the statute of limitations.
See Houston v. Lack, 487 U.S. 266 (1988) (stating that a prisoner's pleading is filed at the moment of delivery to prison authorities for forwarding to the district court).
C. Spurgeon's Arguments
In his memorandum in opposition to the respondent's motion, Spurgeon does not respond to the argument that his federal Petition was untimely filed, but rather addresses the merits of his Petition. (See Petr.'s Resp. Opp'n Mot. Summ. J., ECF No. 28.) However, liberally construing the Petition itself, the court discerns that Spurgeon appears to contend in connection with the issue of timeliness: (1) that he "newly discovered" he was not eligible for parole despite having been advised by his attorney that he would be granted parole after twenty years if he pled guilty; and (2) that his attorney "failed to file for a direct appeal . . . denying [Spurgeon] the right to file any motion before the one year statu[t]e of limitations." (See generally Pet., ECF No. 1.) Thus, he appears to assert in his Petition that the statue of limitations should be equitably tolled.
Alternatively, to the extent Spurgeon's argument depends on utilizing the statute of limitations contained in § 2244(d)(1)(D) rather than (d)(1)(A), his Petition would be untimely for all of the same reasons he is not entitled to equitable tolling. See 28 U.S.C. § 2244(d)(1)(D) (utilizing the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence). In addition, even if the court were to use, as Spurgeon appears to urge, the date Spurgeon was informed by the Department of Corrections that he was ineligible for parole (July 23, 2014), his Petition is nonetheless time barred because his state PCR application, which was filed a few months after receiving that information from the Department of Corrections, was determined to be untimely, precluding it from tolling the one-year deadline. Pace v. DiGuglielmo, 544 U.S. 408 (2005) (holding that a state PCR application that is rejected by the state court as untimely is not "properly filed" within the meaning of § 2244(d)(2) and therefore does not entitle the petitioner to statutory tolling).
To avoid application of the statute of limitations to the instant federal habeas corpus Petition, Spurgeon 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, 544 U.S. at 418 (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." Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003) (en banc) (internal quotation marks and citation omitted); see also United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). Thus, to be entitled to equitable tolling, an otherwise time-barred petitioner must present: "(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time." Rouse, 339 F.3d at 246.
The instant Petition contains few details that would assist the court with this analysis. However, review of the record provides additional clarity. Spurgeon pled guilty to a prior murder conviction in 1973. (Indictment, App. at 39, ECF No. 20-1 at 41.) Although he received a life sentence for this conviction, he was paroled on January 4, 1983. (App. at 20, ECF No. 20-1 at 22 n.1.) Spurgeon was indicted for a second murder charge in 1987 and, as stated in his Petition, pled guilty on advice of counsel, who allegedly informed Spurgeon that he would be eligible for parole in twenty years. (Pet., ECF No. 1 at 9.) However, on July 23, 2014, Spurgeon "received a reply from the South Carolina Department of Corrections Division of Classification" which stated that, because he had convictions for multiple violent offenses, he was ineligible for parole. (App. at 7-8, ECF No. 20-1 at 9-10.)
Spurgeon's response in opposition states that he was advised by his attorney that he would be eligible for parole after thirty years. (ECF No. 28 at 1.)
The court observes that attorney misconduct that is beyond a garden-variety claim of attorney negligence may present a basis for equitable tolling. See Holland, 560 U.S. at 633. However, even assuming without deciding that Spurgeon's attorney erred in his representation of Spurgeon and that this conduct constitutes more than garden-variety attorney neglect that could otherwise justify equitable tolling, Spurgeon has failed to show that he has been diligently pursuing his rights. Other than apparently initiating contact with the parole board approximately twenty-seven years after his guilty plea, Spurgeon has provided no evidence to demonstrate that he has been diligently pursuing his rights, or that extraordinary circumstances prevented him from timely filing a federal habeas petition within the one year following the effective date of AEDPA. See Holland, 560 U.S. at 649; Pace, 544 U.S. at 418-19 (denying equitable tolling to a habeas petitioner who waited years to file his PCR petition and months after his PCR trial to seek relief in federal court); Harris, 209 F.3d at 330 ("Under long-established principles, petitioner's lack of diligence precludes equity's operation."). Courts have recognized in other, similar contexts that the failure to appreciate the collateral consequences of a guilty plea conviction until after the expiration of the one-year statute of limitations does not delay the commencement of a limitations period. See, e.g., Booker v. Bodison, C.A. No. 8:10-1098-HMH-JDA, 2011 WL 1807400, at *4 (D.S.C. May 11, 2011) (rejecting a habeas petitioner's argument that his AEDPA statute of limitations began to run under § 2241(d)(1)(D) when he received notification from the Department of Corrections that he was required to participate in community supervision as a mandatory component of his sentence for up to two years following his incarceration) (citing Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (Easterbrook, J.) ("Time begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance.")). Moreover, courts have similarly recognized that commencement of the AEDPA statute of limitations is not delayed when petitioners could discover the factual predicate of their claims "through public sources." Booker, 2011 WL 1807400, at *4 (citing Wade v. Robinson, 327 F.3d 328, 333 (4th Cir. 2003)). And more generally, it is well recognized that ignorance of the law does not warrant equitable tolling. See Cross-Bey v. Gammon, 322 F.3d 1012, 1015 (8th Cir. 2003) (rejecting equitable tolling where a petitioner alleged lack of legal knowledge or legal resources); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) ("[I]t is well established that ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.") (internal quotation marks and citations omitted); Jones v. South Carolina, C/A No. 4:05-2424-CMC-TER, 2006 WL 1876543, at *3 (D.S.C. June 30, 2006) ("Other courts addressing equitable tolling have found that 'extraordinary circumstances' are not: having an inadequate law library, . . . claims of actual innocence, reliance on other inmates' advice, ignorance of the AEDPA filing deadline, or even (in some instances) petitioner illness."); see also Owens, 235 F.3d at 359 ("Owens is young, has a limited education, and knows little about the law. If these considerations delay the period of limitations until the prisoner has spent a few years in the institution's law library, however, then § 2244(d)(1) might as well not exist; few prisoners are lawyers.").
Specifically with regard to Spurgeon's contention that his attorney failed to file a direct appeal on his behalf despite allegedly conveying to Spurgeon that he would do so, the court observes that Spurgeon initially raised this issue in his PCR application. (See App. at 2, ECF No. 20-1 at 4.) However, despite having the opportunity to do so, Spurgeon did not pursue this issue or seek to file a belated appeal at his PCR hearing. See White v. State, 208 S.E.2d 35 (S.C. 1974) (holding that where a PCR judge determines that an applicant did not freely and voluntarily waive his direct appellate rights, the applicant may petition the South Carolina Supreme Court for review of direct appeal issues). Accordingly, Spurgeon has failed to provide sufficient information to demonstrate that he has been diligently pursuing his rights sufficient to entitle him to equitable tolling, nor has he presented any extraordinary circumstances that would have prevented him from timely filing a federal habeas petition. See Holland, 560 U.S. at 649; Pace, 544 U.S. at 418-19; Harris, 209 F.3d at 330 ("Under long-established principles, petitioner's lack of diligence precludes equity's operation.").
RECOMMENDATION
Based upon the foregoing, the court finds that Spurgeon's Petition was not timely filed and is therefore barred by the applicable statute of limitations. Accordingly, the court recommends that the respondent's motion for summary judgment (ECF No. 21) be granted and Spurgeon's Petition dismissed as untimely.
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE February 24, 2017
Columbia, South Carolina
The parties' attention is directed to the important notice on the next page.
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).