McHoney v. South Carolina

• Decision Date: 14 August 2007
• Docket Number: C.A. No. 4:06-3016-PMD-TER.
• Parties: Spencer Leonard McHONEY, Petitioner, v. State of SOUTH CAROLINA; S.C. Department of Corrections; and Warden Stan Burtt, Lieber Correctional Institution, Respondents.
• Court: U.S. District Court — District of South Carolina

518 F.Supp.2d 700

Spencer Leonard McHONEY, Petitioner, v. State of SOUTH CAROLINA; S.C. Department of Corrections; and Warden Stan Burtt, Lieber Correctional Institution, Respondents.

C.A. No. 4:06-3016-PMD-TER.

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

August 14, 2007.

Spencer Leonard McHoney, Ridgeville, SC, Pro se.

Donald John Zelenka, Samuel Creighton Waters, Columbia, SC, for Respondents.

ORDER

PATRICK MICHAEL DUFFY, District Judge.

Petitioner Leonard McHoney ("Petitioner" or "McHoney"), a state prisoner proceeding without the assistance of counsel, seeks habeas corpus relief under Title 28, United States Code Section 2254. This matter has been reviewed by United States Magistrate Judge Thomas E. Rogers, III, and is currently before the court upon the Magistrate Judge's recommendation that (1) Respondents' motion for summary judgment be denied and Respondents be allowed to re-file their motion for summary judgment addressing the merits of Petitioner's habeas allegations, and (2) that Petitioner's motion to stay his habeas petition be denied. The record includes the Report and Recommendation of the Magistrate Judge ("R & R"), which was made in accordance with 28 U.S.C. § 636(b)(1)(B).

A party may object, in writing, to a R & R within ten days after being served with a copy of that report. 28 U.S.C. § 636(b)(1). This court is charged with conducting a de novo review of any portion of the Magistrate Judge's R & R to which a specific objection is registered and may accept, reject, or modify, in whole or in part, the recommendation contained in the R & R. 28 U.S.C. § 636(b) (1). Respondents have filed timely objections to the R & R, which the court now considers.

HISTORY OF THE CASE

Petitioner was indicted in January of 1996 for the murder of Violet White. State v. McHoney, Cr. No.:96-GS-08-011. (PCR App. 2361-62.) On May 4, 1997, a jury found Petitioner guilty as charged. Following a sentencing hearing, Judge Whetstone sentenced Petitioner to life imprisonment on May 7, 1997. (PCR App. 2015, 2366.)

Petitioner filed a timely Notice of Appeal with the South Carolina Supreme Court. Following briefing by both sides and an oral argument, the South Carolina Supreme Court affirmed the conviction and sentence by opinion dated March 19, 2001. State v. McHoney, 344 S.C. 85, 544 S.E.2d 30 (2001). (PCR App. 2155, 2175, 2197.)

First PCR Application

On October 11, 2001, Petitioner filed his first Application for Post-Conviction Relief ("APCR"). Following an evidentiary hearing on August 14, 2002, the Honorable Daniel F. Pieper issued an Order on December 7, 2002 rejecting Petitioner's claims and dismissing the first APCR. (PCR App. 2224, 2309.)

Second PCR Application

Five hundred and fifty two (552) days later, on June 14, 2004, Petitioner filed a second Application for Post-Conviction Relief asking that he be allowed to file a belated appeal of his first APCR. (PCR App. 2330.) Petitioner argued that his counsel failed to timely file a Notice of Appeal from Judge Pieper's denial of the first APCR as a result of a misunderstanding between Petitioner's counsel and the clerk of court. Therefore, Petitioner argues he is entitled to relief pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991).¹ On July 16, 2004, Judge Pieper signed a consent Order granting a belated Austin appeal. (PCR App. 2358.) Thereafter, Petitioner filed a timely Notice of Appeal. On January 7, 2005, Petitioner filed and served a Petition for Writ of Certiorari and Austin Petition for Writ of Certiorari. (R & R at 5.)

On May 24, 2006, the South Carolina Supreme Court issued an Order in which it granted the petition for writ of certiorari as to the second PCR Order, dispensed with further briefing, and denied the petition for writ of certiorari as to the first PCR Order. The Remittitur was sent down June 9, 2006. (R & R at 6.)

Petitioner's Federal Habeas Corpus Petition

Petitioner filed his federal habeas petition with this court on October 23, 2006,² one hundred and fifty-two (152) days after the disposition of his second APCR. On February 1, 2007, Respondents filed a return and memorandum of law in support of their motion for summary judgment to which Petitioner responded. Respondents assert Petitioner's petition must be dismissed because it was filed outside of the one-year limitations period imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA").

Under the AEDPA's statute of limitations, an application for a writ of habeas corpus must be filed by a person in custody pursuant to the judgment of a state court within one year 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.

AEDPA, 28 U.S.C. § 2244(d)(1). Section 2244(d)(2) provides that "[t]he 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." AEDPA, 28 U.S.C. § 2244(d)(2) (emphasis added).

After considering the record, the relevant law, Respondents' Motion, and Petitioner's Response, the Magistrate Judge concluded that the habeas corpus petition was timely. (R & R at 13.) Direct review of Petitioner's state-court conviction was concluded ninety (90) days after the South Carolina Supreme Court affirmed Petitioner's conviction on March 19, 2001, when the time for filing a petition for a writ of certiorari in the United States Supreme Court expired,³ See Harris v. Hutchinson, 209 F.3d 325 (4th Cir.2000) (holding that direct review concludes at expiration of time for seeking certiorari from United States Supreme Court). Accordingly, Petitioner's conviction became final and the AEDPA's one year limitations period began to run on June 18, 2001. As such, the Magistrate Judge found that one hundred and fifteen (115) days of non-tolled time passed between the conclusion of direct review and the filing of the first APCR on October 11, 2001. (R & R at 11.) The Magistrate Judge next concluded that the time between the denial of Petitioner's first APCR and the filing of the second APCR should be tolled. (R & R at 12.) The Magistrate Judge reasoned that "based on the fact Petitioner was allowed a belated appeal on his first PCR application and allowed to file an Austin appeal with the South Carolina Supreme Court, the time period between the decision of the first PCR and the filing of the second PCR application was tolled." (Id.) As such, "there was a total of one hundred and fifty-two (152) days of non-tolled time between the decision of the South Carolina Supreme Court [denying Petitioner's second PCR] and the filing of this habeas petition for a total of two hundred and sixty-seven days of non-tolled time (115 + 152=267)." (Id.) According to the Magistrate Judge's calculation, less than 365 days of untolled time had passed between the date on which Petitioner's conviction became final and the filing of the petition in federal court. (Id.) Therefore, the Magistrate Judge found the petition timely and recommended that the Respondents' motion for summary judgment be denied. (R & R at 15.) The Magistrate Judge further recommended that Respondents be allowed to re-file their motion for summary judgment addressing the merits of Petitioner's habeas allegations. (Id.)

Respondents object to the Magistrate Judge's finding that Petitioner's habeas corpus petition was timely. They argue that the state court's granting of a belated appeal of Petitioner's APCR does not "wipe the slate clean" in the interim between the first APCR and the granting of belated review requested in the second APCR. (Objections at 5.) Because the time between the first and second APCR should not be tolled, Respondents contend Petitioner's § 2254 motion was clearly filed outside the AEDPA's one-year limitations period. Respondents claim that both the plain meaning of the AEDPA and relevant case law supports this conclusion. (Objections at 6.)

The court reviews de novo the Magistrate Judge's finding that the petition was timely filed. Unless the grant of Petitioner's Austin appeal retroactively tolled the limitations period during the five-hundred and fifty-two days between the dismissal of the first APCR and the filing of the second APCR, Petitioner's motion under § 2254 is untimely. Accordingly, the only issue to be determined is whether the initial APCR was "pending," as meant by the AEDPA, during the time between the state court's initial denial of the APCR and the state court's allowance of a belated appeal of that APCR.

In Carey v. Saffold, the Supreme Court defined "pending" as meant by 2244(d)(2):

[A]n application is pending as long as the ordinary state collateral review process is "in continuance" i.e. "until the completion of that process. In other words, until the application has achieved final resolution through the State's postconviction procedures, by definition it remains "pending."

536 U.S. 214, 219-20, 122 S.Ct. 2134, 2138, 153 L.Ed.2d 260 (2002) (quoting WEBSTER'S THIRD NEW INT'L DICTIONARY 1669 (1993)). Under this formulation, a claim is "pending" for the entire term of state court review, including those intervals between one court's judgment and the filing of an appeal...