Beatty v. Rawski, Civil Action No. 1:13–3045–MGL–SVH.

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Citation: 97 F.Supp.3d 768
• Docket Number: Civil Action No. 1:13–3045–MGL–SVH.
• Parties: Gena BEATTY, Petitioner, v. Warden Angelia RAWSKI, Respondent.
• Decision Date: 31 March 2015

97 F.Supp.3d 768

Gena BEATTY, Petitioner
v.
Warden Angelia RAWSKI, Respondent.

Civil Action No. 1:13–3045–MGL–SVH.

United States District Court, D. South Carolina, Aiken Division.

Signed March 31, 2015.
Order Denying Motion July 12, 2015.

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Tara D. Shurling, Columbia, SC, for Petitioner.

James Anthony Mabry, Donald John Zelenka, South Carolina Attorney General's Office, Columbia, SC, for Respondent.

ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND DISMISSING PETITIONER'S HABEAS PETITION WITH PREJUDICE

MARY G. LEWIS, District Judge.

I. INTRODUCTION

This case was filed as a 28 U.S.C. § 2254 action. Petitioner is represented by excellent counsel. The matter is before this Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that Respondent's motion for summary judgment be granted and Petitioner's habeas petition be dismissed with prejudice. The

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Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.

The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

The Magistrate Judge filed the Report on January 29, 2015, and Petitioner filed her objections on March 16, 2015.

II. PETITIONER'S GROUNDS FOR RELIEF

Petitioner raises four grounds for relief in her § 2254 petition:

Ground One: Plea counsel failed to provide the Petitioner effective assistance of counsel prior to and during her guilty pleas, in violation of her rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, in that he failed to prepare and investigate her case and specifically neglected to review the discovery material in Petitioner's case with her and failed to discuss possible uses of some of the information contained therein to formulate potential defenses to her charges.

* * * * * *

Ground Two: Plea counsel failed to provide the Petitioner effective assistance of counsel prior to and during her guilty pleas, in violation of her rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, in that he failed to address and/or properly investigate the Petitioner's medical and mental health history. Counsel's failure to adequately investigate the Petitioner's medical history resulted in pleas which were not knowingly and voluntarily entered in that she pleaded guilty in reliance upon plea counsel to be prepared to effectively represent her in presenting evidence in mitigation of the sentences to be imposed.

* * * * * *

Ground Three: Plea counsel failed to provide the Petitioner effective assistance of counsel prior to and during her guilty pleas, in violation of her rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, in that he misinformed the Petitioner regarding the plea negotiations in her case and the potential sentences she could expect to receive as a consequence of her pleas and thereby made it impossible for her to make a voluntary and intelligent decision to enter pleas of guilty on her charges.

* * * * * *

Ground Four: Plea counsel failed to provide the Petitioner effective assistance of counsel prior to and during her guilty pleas, in violation of her rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, in that he failed to adequately prepare for either the Petitioner's original plea proceeding or her subsequent hearing on a post-plea Motion to Reconsider Sentencing specifically failing to present readily available evidence in mitigation which would have potentially have been of significant benefit to the Petitioner on the issue of sentencing. Her pleas of guilty were not knowingly and voluntarily entered in that they

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were the product of ineffective assistance of counsel.

Petition Attachment One 6.

III. DISCUSSION

A. Statute of Limitations

First, the Magistrate Judge asserts that Petitioner failed to file her habeas petitioner before the expiration of the statute of limitations had run under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which states, in relevant part:

(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 postconviction 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).

In the Magistrate Judge's Report, she sets out in detail both (1) her view of the law as it pertains to when Petitioner's statute of limitations was tolled as it relates to AEDPA and (2) the procedural history of the case. This Court sees no reason to repeat that material here.

Petitioner does not object to the Magistrate Judge's recitation of the procedural history. And, the only portion of the Magistrate Judge's legal analysis that Petitioner disagrees with are the Magistrate Judge's statements that “[t]he statute of limitations remained tolled until the Court of Appeals denied [Petitioner's] petition for rehearing and rehearing en banc on September 21, 2012. The statute of limitations resumed on September 22, 2012, and expired (the first business day) 365 days later, on September 22, 2013.” Report 11. Thus, according to the Magistrate Judge, because Petitioner failed to file her habeas petition until November 7, 2013, forty-six days after the statute of limitations had run, “Petitioner's habeas petition is untimely under 28 U.S.C. § 2244(d).” Id.

According to Petitioner, however, the statute of limitations was tolled until November 8, 2012, the date that the South Carolina Court of Appeals issued the remittitur in the case. So, this disagreement is of grave importance. If the Magistrate Judge is correct, then Petitioner's habeas petition is barred by AEDPA's one-year statute of limitations. But, if the Petitioner is correct, then it is not.

Subsection 2244(d)(1)(A) encompasses review of a State conviction by the Supreme Court and § 2244(d)(2) is exclusively concerned with “State post-conviction or other [State] collateral review.” Lawrence v. Florida, 549 U.S. 327, 333, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (“Indeed, we

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have] noted that the Courts of Appeals have uniformly interpreted ‘direct review’ in § 2244(d)(1)(A) to encompass review of a state conviction by this Court. By contrast, § 2244(d)(2) refers exclusively to State post-conviction or other state collateral review, language not easily interpreted to include participation by a federal court.”) (internal citation omitted) (internal quotation marks omitted) (internal alteration omitted). It is for that reason that the Court is unpersuaded by any argument that Gonzalez v. Thaler, ––– U.S. ––––, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012), essentially overruled the Florida mandate requirement discussed in Lawrence. Gonzalez is concerned with when a State conviction becomes final under § 2244(d)(1)(A). Id. at 646. But Lawrence is concerned with when a State post-conviction habeas petition is final under § 2244(d)(2). See Gonzalez, 132 S.Ct. at 654 n. 10 (“[The petitioner] also argues that Lawrence ... supports his focus on the state court's issuance of the mandate because it referred to a mandate in...