Opinion
C. A. 5:21-767-MGL-KDW
04-29-2022
William Ricky Welch, Petitioner, v. Warden Kenneth Nelson, Respondent.
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REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
William Ricky Welch (“Petitioner”) is a state prisoner who filed this pro se 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)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 25, 26. On September 16, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 27. Petitioner filed a Response in Opposition to Respondent's Motion on December 15, 2021. ECF No. 37, and Respondent filed a Reply on January 5, 2022. ECF No. 41.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 26, be granted, and this Petition be denied.
I. Background
Petitioner is currently incarcerated in Lee Correctional Institution of the South Carolina Department of Corrections. ECF No. 1 at 1. He was indicted at the February 2008 term of the Sumter County Grand Jury on first degree criminal sexual conduct with a minor and committing or attempting a lewd act upon a child. App. 658-59. Petitioner proceeded to a jury trial on June 2-4, 2008, before the Honorable R. Ferrell Cothran, Jr., Circuit Court Judge. App. 56 et. seq. Petitioner was represented by Assistant Public Defender Ernest “Chip” Finney and Special Prosecutor Suzanne Mayes represented the State. App. 56. The jury found Petitioner guilty as indicted. App. 574. Judge Cothran sentenced Petitioner to 20-years imprisonment. App. 583.
Citations to “App.” refer to the Appendix for Petitioner's trial transcript and Post-Conviction Relief (“PCR”) Proceedings and the page numbers on the top of the page. That appendix is available at ECF Nos. 25-1 to 25-3 in this habeas matter.
Petitioner appealed his convictions to the South Carolina Court of Appeals (“Court of Appeals”). The Court of Appeals issued a decision on November 10, 2011 affirming Petitioner's convictions. State v. Welch, No. 2011-UP-503, 2011 WL 11735795 (S.C. Ct. App. Nov. 10, 2011). Petitioner filed a petition for writ of certiorari in the South Carolina Supreme Court which the court denied on December 20, 2012. ECF No. 25-4.
II. Procedural History
Petitioner filed an Application for Post-Conviction Relief (“PCR”) on July 9, 2013. App. 585-88. Petitioner asserted he was being held in custody unlawfully because of ineffective assistance of counsel. App. 586. The State filed a Return on October 29, 2013, which was amended on November 22, 2013. App. 590-97. A PCR motion hearing was convened on April 15, 2015, before the Honorable George C. James, Jr., Circuit Court Judge. App. 599-626. Petitioner was present and represented by Attorney Fulton Casey Dale Cornwell, and Attorney Daniel F. Gourley appeared on behalf of the State. See id. Petitioner and his trial counsel Ernest A. Finney testified at the hearing. Id. The PCR court denied and dismissed Petitioner's PCR Application with prejudice in an order filed on October 8, 2015. App. 628-35.
Petitioner filed a second PCR Application on May 9, 2017, in which Petitioner raised ineffective assistance of trial counsel claims and an ineffective assistance of PCR counsel claim pursuant to Austin v. State asserting his PCR counsel failed to file an appeal of the PCR court's order. App. 637-43. On August 22, 2017, the State filed a Return and Motion to Dismiss all allegations beyond Austin Review. App. 646-51. On November 9, 2017, Chief Administrative Judge R. Ferrell Cothran Jr. issued a consent order granting an appeal pursuant to Austin v. State and dismissing the remaining PCR allegations. App. 653-57.
Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991)
Appellate Defender David Alexander filed a Johnson Petition for Writ of Certiorari pursuant to Austin v. State in the South Carolina Supreme Court on June 18, 2018, raising the following issue:
Johnson v. State, 294 S.C. 310, 364 S.E.2d 201 (1988).
Whether trial counsel was ineffective under the Sixth Amendment because he failed to object to the solicitor's statements in closing argument that improperly vouched for the complainant's credibility?
ECF No. 25-5 at 3. Petitioner's counsel asserted that the petition was without legal merit and requested permission to withdraw from further representation. Id. at 9. On June 19, 2018, the South Carolina Supreme Court issued a letter notifying Petitioner that his counsel submitted a writ of certiorari indicating his appeal was without merit and informing Petitioner that he had the option to file a pro se response. ECF No. 25-6. Petitioner did not file a response. On August 14, 2018, the South Carolina Supreme Court transferred the Petition for Writ of Certiorari to the Court of Appeals. ECF No. 25-7. The Court of Appeals granted a petition for writ of certiorari from Judge Cothran's order, dispensed with further briefing, and conducted an Austin review of Judge James's order. ECF No. 25-8. Based on the vote of the panel, the Court of Appeals denied the petition for certiorari and granted counsel's request to withdraw. Id. The remittitur was issued on July 7, 2020. ECF No. 25-9. This Petition followed on March 15, 2021. ECF No. 1-4.
II. Discussion
A. Federal Habeas Issues
Petitioner states the following grounds in his habeas petition:
Ground One: The circuit court erred in allowing the state to proceed under section 16-3655 (A)(2) of the S.C. Code (Supp. 2010) doing so violated the S.C.R.A. and his due process rights.
Supporting Facts: S.C. Code 16-3-655 (A)(2) was used to deny appellant a fair trial. Appellant's previous conviction was stated for the jury to hear before he was convicted for the current offense, which prejudiced the jury's decision. S.C. Code 16-3-655 (A)(2) should have been bifurcated in order to encre a fair trial.
ECF No. 1 at 5 (errors in original).
B. Standard for Summary Judgment
Summary judgment is appropriate “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). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.
The petition was received and docketed by the court on March 17, 2021. ECF Nos. 1, 1-1. However, because Petitioner is incarcerated, he benefits from the “prison mailbox rule.” Houston v. Lack, 487 U.S. 266 (1988). The envelope containing the petition was deposited in the prison mailing system on March 15, 2021. ECF No. 1-1.
C. Analysis of Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) Bar
1. Habeas Corpus Statute of Limitations
Because Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claim is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). The AEDPA provides that “[a] 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). Further, the AEDPA provides that 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.28 U.S.C.A. § 2244(d)(1)(A)-(D). The statute further provides that “[t]he time during which a properly filed application for State post-conviction or collateral relief 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)(2).
2. Petitioner's Application Is Time-Barred
Respondent contends Petitioner's habeas petition should be dismissed because Petitioner's claims are barred by the statute of limitations. ECF No. 25 at 10-11. As stated above, the AEDPA provides that “[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.” 28 U.S.C. § 2244(d)(1). The time limit begins to run at the “conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The United States Supreme Court has interpreted the two prongs of 28 U.S.C. § 2244(d)(1)(A) as follows:
The text of § 2244(d)(1)(A), which marks finality as of ‘the conclusion of direct review or the expiration of the time for seeking such review,' consists of two prongs. Each prong-the ‘conclusion of direct review' and the “expiration of the time for seeking such review”-relates to a distinct category of petitioners. For petitioners who pursue direct review all the way to this Court, the judgment becomes final at the ‘conclusion of direct review'-when this Court affirms a conviction on the merits or denies a petition for certiorari. For all other petitioners, the judgment becomes final at the ‘expiration of the time for seeking such review'-when the time for pursuing direct review in this Court, or in state court, expires. We thus agree with the Court of Appeals that because [petitioner] did not appeal to the State's highest court, his judgment became final when his time for seeking review with the State's highest court expired.Gonzalez v. Thaler, 566 U.S. 134, 150 (2012) (clarifying the Court's prior cases concerning 28 U.S.C. § 2244(d)(1)(A)).
As previously summarized, Petitioner timely appealed his convictions and his appeal was dismissed by the South Carolina Supreme Court on December 20, 2012. Because Petitioner did not petition the South Carolina Supreme Court for rehearing, the statute of limitation in Petitioner's case began to run on January 4, 2013, 15 days after the dismissal of Petitioner's direct appeal. See S.C. Appellate Ct. R. 221(a) (“Petitions for rehearing must be actually received by the appellate court no later than fifteen (15) days after the filing of the opinion, order, judgment, or decree of the court”); 28 U.S.C. 2244(d)(1)(A) (“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. . .”). Petitioner's filing of his first PCR application on July 9, 2013, tolled the one-year limitations period, see 28 U.S.C. § 2244(d)(2), at which time 186 days had elapsed, leaving 179 days within which Petitioner could timely file a federal habeas petition. The statute of limitations remained tolled until, at the very latest, July 9, 2020, upon the filing of the remittitur in Sumter County after the Court of Appeals denied the petition for writ of certiorari. See ECF No. 25-9. The statute of limitations expired on January 4, 2021, however, Petitioner did not file his habeas action until March 15, 2021, 70 days after the statute of limitations had run. Accordingly, Petitioner's habeas petition is untimely under 28 U.S.C. § 2244(d) and must be dismissed.
South Carolina district courts have offered varied opinions on whether (1) the decision date, (2) the remittitur date, or (3) the date of receipt of the remittitur controls for purposes of calculating the statute of limitations. See, e.g., Smith v. Warden, Lieber Corr. Inst., No. 4:13-3090-BHH, 2014 WL 5503529, at *6 (D.S.C. Oct. 30, 2014) (“The [PCR] appeal was denied by the South Carolina Supreme Court on April 17, 2013, at which time the statute of limitations resumed.”); Johnson v. Warden, Lee Corr. Inst., No. 2:14-cv-0768 DCN, 2015 WL 1021115, at *9 (D.S.C. Mar. 9, 2015) (“The statute of limitations remained tolled during the pendency of the PCR action which began on April 13, 2009, and lasted until the Remittitur for the PCR Appeal was issued on June 20, 2013.”); Beatty v. Rawski, No. 1:13-3045-MGL-SVH, 2015 WL 1518083, at *2-6 (D.S.C. Mar. 31, 2015) (holding that the date the remittitur was filed in circuit court should be used for the purposes of calculating the statute of limitations).
3. The Statute of Limitations Should Not Be Equitably Tolled
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 v. Hutchinson, 209 F.3d 325 (4th Cir. 2000). 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. The respondent bears the burden of asserting the AEDPA's statute of limitations, Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002); the petitioner then bears the burden of establishing that his petition is timely or that he is entitled to the benefit of the equitable-tolling doctrine, Rouse, 339 F.3d at 246.
In 2010, the United States Supreme Court considered the issue and also held that § 2254 “is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 644-46 (2010); cf. Pace v. DiGuglielmo, 544 U.S. 408, 418 n.8 (2005) (noting Court assumed without deciding that AEDPA's statute of limitations could be equitably tolled for purposes of that decision because respondent assumed it did). The Holland Court reiterated its prior holding in Pace 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 648-49 (quoting Pace, 544 U.S. at 418)).
In support of his claim for equitable tolling, Petitioner states from March 20, 2020 to May 2021, his institution was
going through the COVID-19 pandemic [and his] housing unit, F-6, was quarantined from July 16, 2020 to approximately the middle of October of 2020. Then we were quarantined again just before Christmas on December 21, 2020 for another thirty (30) days, which ended approximately January 21, 2021. Another quarantine came around at the end of February 2021 to March 2021 for another ten (10) days. Even so, before and after the quarantines there was a very limited use of the Law Library at this facility (Lee Correctional Institution) due to the pandemic and the shortness of staff conditions plaguing not only this institution but the entire state department of corrections.
ECF No. 37 at 2. In Reply, Respondent argues Petitioner is not entitled to equitable tolling as Petitioner has failed to show he exercised due diligence in getting his petition filed before the expiration of the statute of limitations. ECF No. 41 at 2-3.
The undersigned finds Petitioner has alleged insufficient facts to establish he is entitled to equitable tolling. Although the Covid-19 pandemic did create unusual circumstances, courts have found that the Covid-19 pandemic did not “automatically warrant equitable tolling for any petitioner who seeks it on that basis.” See Olsen v. United States, No. 20-CV-166-BLW, 2021 WL 329462, at *3 (D. Idaho Feb. 1, 2021); see also United States v. Henry, No. 2:20-cv-01821, 2020 WL 7332657, at *4 (W.D. Pa. Dec. 14, 2020). To meet the requirements of equitable tolling, Petitioner is required to “allege with specificity the steps he took to diligently pursue his federal claims. Yang v. Archuleta, 525 F.3d. 925, 930 (10th Cir. 2008). Although Petitioner states his housing unit was periodically on Covid quarantine from July 2020 to January 2021, the undersigned notes Petitioner was not on quarantine the first two weeks of July, the second half of October, all of November, and 3/4 of December. However, Petitioner fails to provide an adequate explanation as to why the resources he had available during these time periods were not sufficient for him to timely file his petition. Petitioner's argument that the pandemic limited his ability to access the law library, standing alone, fails to establish extraordinary circumstances. As Petitioner has failed to point to any action he took to proactively protect his rights, he is not entitled to equitable tolling. See Booker v. Clarke, No. 3:21cv212 (DJN), 2022 WL 464554, at *3 (E.D. Va. Feb. 15, 2022) (explaining routine aspects of prison life, such as “restricted access to the law library . . . do not qualify as extraordinary circumstances.”); United States v. Harris, Cr. No. 3:15cr170 (DJN), 2021 WL 1823109, at *5 (E.D. Va. May 6, 2021) (finding that generic claims about Covid-19 restrictions did not warrant equitable tolling noting an inmate must explain with specificity how the alleged conditions actually hindered his efforts to pursue his claims within the statute of limitations); Howard v. United States, No. 4:20-CV-1632 JAR, 2021 WL 409841, at *2 (E.D. Mo. Feb. 5, 2021) (rejecting that COVID-19 pandemic prevented movant from fully presenting his case because “movant makes no effort to demonstrate that he has been diligently pursuing his rights” and “does not claim to have taken any action to pursue his rights”). The undersigned recommends the Petition be dismissed on statute-of-limitations grounds. Having found that the statute of limitations bars Petitioner's § 2254 Petition, the undersigned is precluded from addressing the merits of his claims. See Kornahrens v. Evatt, 66 F.3d 1350 (4th Cir. 1995) (finding that once a claim is determined to be procedurally barred, the court should not consider the issue on its merits).
III. Conclusion and Recommendation
Based upon the foregoing, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 26, be GRANTED and the Petition be DENIED.
IT IS SO RECOMMENDED.
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
Post Office Box 2317
Florence, South Carolina 29503
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).