Bostic v. Reynolds, C/A No. 0:14-4857-DCN-PJG

• Decision Date: 30 September 2015
• Docket Number: C/A No. 0:14-4857-DCN-PJG
• Court: U.S. District Court — District of South Carolina
• Parties: Robert Lawrence Bostic, Petitioner, v. Warden Cecelia Reynolds, Respondent.

Robert Lawrence Bostic, Petitioner, v. Warden Cecelia Reynolds, Respondent.

C/A No. 0:14-4857-DCN-PJG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

September 30, 2015

REPORT AND RECOMMENDATION

The petitioner, Robert Lawrence Bostic, a self-represented state prisoner, filed this 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. 23.) 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. 25.) Bostic filed a response in opposition (ECF No. 31), and the respondent replied (ECF No. 32). Having carefully considered the parties' submissions and the record in this case, the court finds that Bostic's Petition is barred by 28 U.S.C. § 2244(d) as untimely.

BACKGROUND

Bostic was indicted in April 2006 in Sumter County for manufacturing crack cocaine (06-GS-43-473), trafficking crack cocaine 28 to 100 grams (06-GS-43-474), trafficking (powder) cocaine more than 100 grams (06-GS-43-475), possession of a pistol with obliterated or removed serial numbers (06-GS-43-476), and possession of marijuana (06-GS-43-477). (App. at 381-94, ECF No. 24-2 at 185-98.) Bostic was represented by Wade S. Kolb, Esquire, and on September 18, 2006, pled guilty to manufacturing crack cocaine, trafficking crack cocaine 28 to 100 grams, trafficking in powder cocaine 28 to 100 grams, and possession of a pistol. (App. at 139, 147-48, 151-54, 161-62, ECF No. 24-1 at 142, 150-51, 154-57, 164-65.) The circuit court sentenced Bostic to ten years' imprisonment for manufacturing crack cocaine, ten years' imprisonment for each trafficking offense, and five years' imprisonment for possession of a pistol, all sentences to be served concurrently. (App. at 188-89, ECF No. 24-1 at 191-92.)

Bostic timely appealed and was represented by LaNelle C. Durant, Esquire, of the South Carolina Commission on Indigent Defense, who filed an Anders¹ brief on Bostic's behalf. (App. at 192-99, ECF No. 24-1 at 195 through ECF No. 24-2 at 3.) Bostic filed a pro se response to the Anders brief. (ECF No. 34-1.) On July 11, 2008, the South Carolina Court of Appeals dismissed Bostic's appeal. (State v. Bostic, Op. No. 2008-UP-367 (S.C. Ct. App. July 11, 2008), App. at 203-04, ECF No. 24-2 at 7-8.) Bostic's petition for rehearing was denied on August 1, 2008. (App. at 205, ECF No. 24-2 at 9.) The remittitur was issued on September 9, 2008. (App. at 207, ECF No. 24-2 at 11.)

Bostic filed a pro se application for post-conviction relief on September 19, 2007 ("2007 PCR"). (Bostic v. State of South Carolina, 07-CP-43-1986, App. at 208-22, ECF No. 24-2 at 13-26.) On March 31, 2009, the PCR court held an evidentiary hearing at which Bostic appeared andtestified and was represented by Brian Benenhaley, Esquire. By order filed June 2, 2009, the PCR court denied and dismissed Bostic's 2007 PCR application with prejudice. (App. at 312-19, ECF No. 24-2 at 116-23.)

Bostic, represented by Appellate Defender Robert M. Pachak, Esquire, of the South Carolina Commission on Indigent Defense, filed a Johnson² petition for a writ of certiorari on November 24, 2009. (App. at 320-25, ECF No. 24-2 at 125-29.) Bostic filed a pro se response to the Johnson petition. (ECF No. 24-5.) On December 2, 2010, the South Carolina Supreme Court issued an Order denying Bostic's petition for a writ of certiorari. (App. at 328, ECF No. 24-2 at 132.) The remittitur was issued December 21, 2010. (App. at 329, ECF No. 24-2 at 133.)

Bostic filed a second pro se application for post-conviction relief on October 3, 2011 ("2011 PCR"). (Bostic v. State of South Carolina, 11-CP-43-1847, App. at 330-54, ECF No. 24-2 at 134-58.) The State filed a return and motion to dismiss. (App. at 355-62, ECF No. 24-2 at 159-66.) On November 23, 2011, the PCR court filed a conditional order of dismissal in which it found Bostic's 2011 PCR application to be successive and untimely. (App. at 369-74, ECF No. 24-2 at 173-78.) Bostic, through counsel Tommy A. Thomas, Esquire, filed a response to the conditional order on December 28, 2011. (App. at 375-78, ECF No. 24-2 at 179-82.) By order filed July 13, 2012, the PCR court denied and dismissed Bostic's 2011 PCR application with prejudice. (App. at 379-80, ECF No. 24-2 at 183-84.)

Bostic, represented by Appellate Defender Breen Richard Stevens, Esquire, of the South Carolina Commission on Indigent Defense, filed a petition for a writ of certiorari on February 13,2013. (ECF No. 24-6.) On July 3, 2014, the South Carolina Court of Appeals issued an Order denying Bostic's petition for a writ of certiorari. (ECF No. 24-9.) The remittitur was issued July 21, 2014. (ECF No. 24-10.)

Bostic filed the instant Petition for a writ of habeas corpus on December 19, 2014.³ (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 theentry 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 Bostic's Petition is untimely under the one-year statutory deadline set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1). The one-year time period runs from the latest of "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); see Gonzalez v. Thaler, 132 S. Ct. 641 (2012). Because Bostic filed a direct appeal, his conviction became final on September 1, 2008⁴—the expiration of the time in which Bostic could have timely filed a petition for a writ of certiorari following the issuance ofthe South Carolina Court of Appeals's order on Bostic's petition for rehearing.⁵ See Rule 242(c), SCACR (instructing that a petition for a writ of certiorari shall be filed "within thirty (30) days after the petition for rehearing or reinstatement is finally decided by the Court of Appeals"); Gonzalez, 132 S. Ct. at 653-54 ("[B]ecause [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."). Accordingly, the limitations period began to run on September 2, 2008, and expired September 1, 2009, unless the period was at any time tolled for any properly filed state PCR application. 28 U.S.C. § 2244(d)(2); see also 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").

Bostic filed his first state PCR application on September 19, 2007—prior to the conclusion of Bostic's direct appeal. Accordingly, Bostic's federal period of limitations was immediately tolled. The period of limitations remained tolled during the pendency of the 2007 PCR action until December 21, 2010, when the South Carolina Supreme Court issued the remittitur from its orderdenying Bostic's petition for a writ of certiorari.⁶ At this time, Bostic had 365 days of statutory time remaining, which means that Bostic had until December 20, 2011 to file a timely federal habeas corpus petition.

Bostic filed a second PCR application on October 3, 2011. However, this application did not toll the statute of limitations for the instant federal Petition because the PCR court dismissed it as untimely. See Pace v. DiGuglielmo, 544 U.S. 408 (2005) (holding that a state PCR application that is rejected by the state court as untimely is...