Gordon v. Cartledge
| Decision Date | 30 September 2011 |
| Docket Number | C.A. No. 8:10-cv-2578-MBS-JDA |
| Parties | Antonio Gordon, Petitioner, v. Warden Leroy Cartledge, Respondent. |
| Court | United States District Courts. 4th Circuit. United States District Court of South Carolina |
Petitioner Antonio Gordon is an inmate in custody of the South Carolina Department of Corrections (SCDC) who currently is housed at Evans Correctional Institution in Bennettsville, South Carolina. On October 5, 2010, Petitioner filed the within petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
This matter is before the court on Respondent's motion for summary judgment filed on February 4, 2011. By order filed February 11, 2011, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to respond adequately. On April 15, 2011, Petitioner filed a response in opposition to Respondent's motion for summary judgment. In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Jacquelyn D. Austin for pretrial handling.
On October 15, 1998, Petitioner was indicted in the Court of General Sessions for York County, South Carolina for murder, three counts of possession of a firearm during the commission of a violent crime, two counts of attempted armed robbery, possession of a firearm by a person under twenty-one, and criminal conspiracy. On July 19, 1999, Petitioner pleadedguilty as charged and was sentenced to a total of forty years imprisonment. A timely notice of appeal was filed on Petitioner's behalf. The South Carolina Court of Appeals dismissed the appeal on December 6, 2000. No petition for writ of certiorari was filed with the South Carolina Supreme Court. The court of appeals issued a remittitur on January 9, 2001. ECF No. 21-5, p. 1. However, before the court of appeals ruled on Petitioner's appeal, he filed his first post-conviction relief ("PCR") application on June 15, 2000. Petitioner filed another PCR application on August 21, 2001 after the remittitur was issued, both of which were consolidated into one application. The PCR court denied relief and after the petition was properly appealed, the South Carolina Supreme Court entered an order denying the petition. A remittitur was issued on August 9, 2005. ECF No. 21-8.
On November 22, 2005, Petitioner filed his first habeas action with this court. While this action was pending, Petitioner filed a pro se petition for writ of habeas corpus in York County, South Carolina on January 3, 2006. ECF No. 21-13. On February 14, 2006, Petitioner wrote to the Magistrate Judge requesting that the court dismiss his federal petition without prejudice until the state court ruled on his habeas petition, which would allow Petitioner to exhaust all state remedies. See 28 USC § 2244.
On February 16, 2007, this court entered an order granting the Petitioner's motion to dismiss. Petitioner's state habeas petition became final on February 6, 2008 after the state amended the original order to permit Petitioner to be without prejudice to bring a habeas corpus petition in the original jurisdiction of the South Carolina Supreme Court. ECF No. 21-19, p. 1.
Petitioner filed his third PCR application in state court on December 19, 2008. The PCR application was dismissed as successive and because no item of evidence had been discovered that could not have been discovered at the time of Petitioner's first PCR application. Petitionertimely appealed. The Supreme Court of South Carolina dismissed the notice of appeal and issued a remittitur on April 19, 2010. Petitioner filed another state habeas petition on July 1, 2010, which was dismissed by the Supreme Court of South Carolina on July 21, 2010.
Petitioner filed this action on October 5, 2010, as his second federal habeas petition. Respondent moved for summary judgment on the grounds the petition was untimely. The Magistrate Judge found that the petition was time-barred under § 2244(d)(1), because more than one year of untolled time had passed since Petitioner's conviction was final and his filing of the herein federal habeas petition. Further, the Magistrate Judge found that Petitioner failed to show that he was entitled to equitable tolling on the grounds that Petitioner waited approximately twenty-two months following the District Court's dismissal of his first federal habeas petition and approximately ten months after judgment in his first state habeas petition before filing any subsequent PCR applications. The Magistrate Judge also reasoned that Petitioner was not entitled to equitable tolling because he demonstrated through his several filings that he knew what avenues of relief were available to him and presented no extraordinary circumstances that prevented him from timely filing the Petition. The Magistrate Judge issued a Report and Recommendation on May 24, 2011, in which she recommended that Respondent's motion for summary judgment be granted and the petition be denied as untimely. Petitioner filed objections to the Report and Recommendation through counsel on June 27, 2011. ("Petitioner's Objections.")
Petitioner makes four specific objections to the Report and Recommendation to challenge the determination that he is not entitled to equitable tolling. Petitioner's objections include that 1) Petitioner has diligently pursued his rights vis-à-vis his § 2254 petition as required for equitable tolling, 2) the court's dismissal without prejudice of Petitioner's first federal habeaspetition in violation of Rhines1 constitutes an extraordinary circumstance that justifies equitable tolling, 3) the court's dismissal without prejudice of Petitioner's first federal habeas petition was misleading to Petitioner and therefore constitutes an extraordinary circumstance to justify equitable tolling, and 4) Petitioner was denied his constitutional right to effective counsel during his first PCR and is entitled to equitable tolling as a result.
The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo determination of any portions of the Report and Recommendation to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
Timeliness of Petition Under § 2254(d)
AEDPA sets forth a one-year statute of limitation on the filing of a federal habeas petition that commences upon the date a conviction becomes final. 28 U.S.C. § 2254(d). Although this limitations period is tolled during the pendency of a state PCR or collateral review, the filing or pendency of a federal habeas petition does not toll the statute of limitations under § 2254(d) even if the district court dismisses the petition without prejudice. See 28 U.S.C. § 2244(d)(2); Duncan v. Walker, 533 U.S. 167, 172 (2001). The entire period of state post-conviction proceedings, from initial filing to final disposition by the highest state court or expiration of the period of time to seek further appellate review, tolls the one-year limitationsperiod. Rouse v. Lee, 339 F.3d 238, 243 (4th Cir. 2003). However, filing a new collateral review application does not toll the period in between final disposition of an existing PCR application and the filing of the new application, when the new filing is not part of the prior proceeding or does not constitute appellate review. Id.
Petitioner's conviction became final on January 9, 2001, at which point Petitioner had already filed a timely PCR application. The statute of limitations for filing a federal habeas petition was tolled during the pendency of the first PCR application and first began to run on August 9, 2005. Although Petitioner filed his first federal habeas petition on November 22, 2005, the pendency of this federal action did not toll the statute of limitations. Duncan, 533 U.S. at 172.
The time period in between the final disposition of the South Carolina Supreme Court regarding the first PCR application and the filing of the state habeas petition on January 3, 2006 did not toll the one-year limitations period, because the state habeas petition was not part of any prior proceedings. Rouse, 339 F.3d at 243. Therefore, by January 3, 2006, 147 days of the limitation period had lapsed and 218 days were remaining. The state habeas petition was properly filed and thus, the pendency of the action tolled the statute of limitations until the final disposition of the petition, which did not occur until February 6, 2008. The statute of limitations period began again on February 6, 2008 and Petitioner had until September 11, 2008, 218 days later, to file a federal habeas petition. Petitioner did not file a federal habeas petition until October 5, 2010, over two years later.2 Therefore, the court concurs with the Magistrate'sfinding that under § 2244(d) the petition was time-barred.
Petitioner's first objection is that he is entitled to equitable tolling because he has diligently pursued his claims. He states that he filed multiple PCR applications and appeals in state and federal court over the course of five years and that any delay in filings can be attributed to the difficulty in crafting a pro se argument while incarcerated and without access to significant legal materials.
A petitioner is entitled to equitable tolling of the limitations period for filing a federal habeas petition if he shows that 1) he has been pursuing his rights diligently and 2) some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). A petitioner is...
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