Opinion
C/A No.: 1:20-1375-SAL-SVH
05-21-2020
Rico Washington, Petitioner, v. Warden Michael Stephon, Respondent.
REPORT AND RECOMMENDATION
Rico Washington ("Petitioner"), proceeding pro se, filed this action requesting habeas corpus relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends the district judge dismiss the petition without issuance and service of process. I. Factual and Procedural Background
Petitioner indicates he was convicted of murder and lynching, first degree, on September 22, 2008, and was sentenced to 27 years' imprisonment. [ECF. No. 1 at 1]. Petitioner did not file a direct appeal. On June 19, 2017, Petitioner filed an application for post-conviction relief ("PCR") alleging ineffective assistance of counsel, which the state court dismissed as untimely and procedurally-barred on July 16, 2019. Id. Petitioner appealed the denial of his PCR application and his appeal was dismissed on February 7, 2020. The remittitur issued on February 28, 2020. See ECF No. 1 at 2; Remittitur from South Carolina Supreme Court and order.
See Washington v. S.C., Final Order of Dismissal, 2017-CP-42-2156 (July 16, 2019). All referenced state court documents may be found at https://publicindex.sccourts.org/Spartanburg/PublicIndex/CaseDetails.aspx?County=42&CourtAgency=42002&Casenum=2017CP4202156&CaseType=V&HKey=114101536576568679748255122568890104868511785666847536543495710651122565075116121837110070684952. A court may take judicial notice of factual information located in postings on government websites. See Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (court may "properly take judicial notice of matters of public record").
Petitioner filed the instant habeas petition on April 8, 2020. [ECF No. 1]. By order dated April 13, 2020, the undersigned noted that the petition appears to be untimely and advised Petitioner the case is subject to summary dismissal unless Petitioner could provide an exceptional reason for the time lapse. The undersigned directed Petitioner to submit a document to the court providing facts concerning the timeliness of the petition that would provide a basis for the application of equitable tolling and thereby prevent dismissal based on the limitations bar.
Petitioner submitted a declaration stating that he is a hearing-impaired and non-English speaker who did not fully understand his legal rights, including the right to appeal, both during and after his criminal proceedings. [ECF No. 5]. II. Discussion
A. 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. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
1. Failure to Prosecute
On April 13, 2020, the undersigned issued a proper form order permitting Petitioner until May 5, 2020, to pay the $5.00 filing fee or return the enclosed Application to Proceed Without Payment of Fees and Affidavit ("Form AO-240"). Petitioner failed to pay the filing fee or submit a Form AO-240.
It is well established that a district court has authority to dismiss a case for failure to prosecute. "The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an 'inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Fed. R. Civ. P. 41(b). Id. at 630.
Based on Petitioner's failure to pay the filing fee or submit an Form AO-240, the undersigned concludes Petitioner does not intend to pursue the above-captioned matter. Accordingly, the undersigned recommends this case be dismissed without prejudice for failure to prosecute pursuant to Fed. R. Civ. P. 41.
2. The Habeas Petition is Untimely
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 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) (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). Because Petitioner did not seek review by the United States Supreme Court, the AEDPA's one-year statute of limitations began running at "the expiration of the time" for seeking direct review in state court. 28 U.S.C. § 2244(d)(1)(A). As Petitioner did not seek direct review with the State's highest court, Petitioner's judgment of conviction therefore became final "when his time for seeking review with the State's highest court expired." Gonzalez v. Thaler, 556 U.S. 134, 149-52 (2012) (clarifying the Court's prior cases concerning 28 U.S.C. § 2244(d)(1)(A)). In South Carolina, a defendant must file a notice of appeal within ten days of his conviction. Rule 203(b) (2), SCACR. Thus, if a defendant does not file a direct appeal, his conviction becomes final ten days after the adjudication of guilt. Crawley v. Catoe, 257 F.3d 395, 398 (4th Cir. 2001). Therefore, Petitioner's conviction became final on November 2, 2008. Petitioner did not file his first PCR until June 19, 2017, over eight years later. Therefore, Petitioner's habeas petition was not filed within AEDPA's one-year statute of limitations.
3. Equitable Tolling Does Not Apply
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.
In support of his claim for equitable tolling, Petitioner states he lacked general knowledge of the legal system and "was not well educated enough to have fully understood what was actually taking place during the course of my trial even with an interpreter involved in the proceedings." [ECF. No. 5 at 1]. He claims he was not informed of his right to appeal and the consequences of foregoing it. Id. He further states:
From the date of my incarceration I have faced tremendous challenges within the criminal justice system. Foremost among the many challenges was the ability to understand what was being said by the Clerk because our ability to communicate with each other was strained this went on from 2008 until 2017, because each time I finally found a clerk to assist me either they were transferred or I was, if that wasn't a set-back another reality was that those whom could have helped me it seemed automatically treated deaf and non- english-speaking differently.Id. at 2.
Petitioner's explanation does not rise to the level of an extraordinary circumstance beyond Petitioner's control enough to warrant the extraordinary remedy of equitable tolling. See Bogan v. South Carolina, 204 F. App'x 160, 160 (4th Cir. 2006) ("Recourse to equitable tolling must be guarded and infrequent."). Despite Petitioner's statements, he appears to concede that he did not file any appeal or PCR from September 2008 until June 2017. Courts have held that "unfamiliarity with the legal process, lack of representation, or illiteracy does not constitute grounds for equitable tolling." Burns v. Beck, 349 F.Supp.2d 971, 974 (M.D.N.C. 2004) (citations omitted). "Likewise, mistake of counsel does not serve as a ground for equitable tolling." Id.; see also Jones v. South Carolina, 2006 WL 1876543, *3 (D.S.C. June 30, 2006) (unpublished). Any negligence on the part of an attorney does not qualify as cause to excuse a missed deadline. Maples v. Thomas, 565 U.S. 266, 280-83 (2012). In the Fourth Circuit, "[e]ven in the case of an unrepresented prisoner, ignorance of the law is not a basis for equitable tolling." United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). District courts in this Circuit have consistently held that a prisoner's inability to speak English is insufficient to warrant equitable tolling. See, e.g., Osnarque v. Thomas, No 3:08CV76-1-MU, 2009 WL 650551, at *1 (W.D.N.C. Mar. 11, 2009) (holding that a petitioner cannot invoke equitable tolling simply because "he is layman of the law and he does not speak English well"); see also Aviles-Negron v. Massey, No. 1:11-CV904, 2013 WL 1314602, at *3-4 (M.D.N.C. Mar. 28, 2013) (collecting cases). Additionally, Petitioner has made no allegations that he had been pursuing his rights diligently. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends that the court dismiss this petition without prejudice and without requiring Respondent to file a return.
IT IS SO RECOMMENDED. May 21, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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).