Williams v. Reynolds, C/A No. 4:16-1503-RMG-TER

• Decision Date: 09 September 2016
• Docket Number: C/A No. 4:16-1503-RMG-TER
• Parties: Cory Williams, #314346, Petitioner, v. Cecilia Reynolds, Warden, Respondent.
• Court: U.S. District Court — District of South Carolina

Cory Williams, #314346, Petitioner, v. Cecilia Reynolds, Warden, Respondent.

C/A No. 4:16-1503-RMG-TER

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

September 9, 2016

Report and Recommendation

The Petitioner, Cory Williams ("Petitioner"), a pro se prisoner confined at Lee Correctional Institution, filed a 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)(c). Having reviewed the petition in accordance with applicable law, the court concludes that it should be summarily dismissed.

BACKGROUND

Petitioner filed the § 2254 Petition, by delivering it to prison officials to be mailed, on May 2, 2016. See Houston v. Lack, 487 U.S. 266, 271 (1988). On March 15, 2006, in the Circuit Court of General Sessions for Greenville County, the Petitioner was found guilty of armed robbery, kidnapping, and possession of a firearm during the commissioner of a violent crime and was sentenced to thirty, thirty, and five years, concurrent terms of imprisonment.

Petitioner filed a direct appeal to the South Carolina Court of Appeals, which was dismissed on November 10, 2008. Under SCACR Rule 221, Petitioner had fifteen days to petition for rehearing and did not. Therefore, Petitioner's conviction became final on November 25, 2008. Petitioner indicated that he filed his first application for post-conviction relief on May 7, 2009. Petitioner indicated that the Court of Common Pleas dismissed the PCR application on October 27, 2010. Petitioner had 30 days to appeal the dismissal and did not. Petitioner alleges he did not appeal the denial of his first PCR because he was unaware it had been dismissed and his attorney failed to timely appeal. It appears Petitioner became aware of the PCR dismissal on December 14, 2012, if not before, because Petitioner filed a letter regarding a belated appeal in the court of common pleas.¹

Petitioner filed a second PCR application on September 13, 2013, and the South Carolina Supreme Court dismissed it with the remittitur being filed in the lower court on March 14, 2016. Petitioner indicated this PCR was his Austin review.

The court in an order (ECF No. 11) directed Petitioner to answer Special Interrogatories regarding timeliness and Petitioner complied.

DISCUSSION

Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings and motion to proceed in forma pauperis pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978);and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).

Furthermore, this court is charged with screening Petitioner's lawsuit to determine if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts. Following the required initial review, it is recommended that the Petition submitted in this case should be summarily dismissed due to untimeliness.

With respect to his convictions and sentences, the petitioner's sole federal remedies are a writ of habeas corpus under either 28 U.S.C. § 2254 or 28 U.S.C. § 2241, which remedies can be sought only after the petitioner has exhausted his state court remedies. "It is the rule in this country that assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Claims not so raised are considered defaulted." Beard v. Green, 523 U.S. 371, 375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)); see also 28 U.S.C. § 2254(b); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973); Picard v. Connor, 404 U.S. 270 (1971).

The petition in the above-captioned case is clearly untimely. The AEDPA, 28 U.S.C. 2244(d) provides:

(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 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.

The "delivery" date of the instant Petition is May 2, 2016. Houston v. Lack, 487 U.S. 266, 270-76 (1988) (prisoner's pleading was filed at moment of delivery to prison authorities for forwarding to District Court). The Petition, Special Interrogatories, and public records show the following periods of untolled time:

— November 25, 2008 (the date the Petitioner's conviction became final under SCACR Rule 221) to May 7, 2009 (the filing date for Petitioner's first state PCR action) (163 days)

— November 26, 2010 (30 days after the first PCR was dismissed on October 27, 2010, and not timely appealed) to September 13, 2013 (the filing date ofsecond PCR application and alleged² allowance of Austin review by state court) (1022 days)

— March 14, 2016 (the date the South Carolina Supreme Court remittitur³ was filed in the lower court) to May 2, 2016 (the Houston v. Lack delivery date of the instant Petition) (49 days)

The time in which Petitioner's second PCR was pending — the time between the filing of the second PCR and the decision by the South Carolina Supreme Court — is tolled. Even when a petitioner is allowed by the state courts to file an untimely notice of appeal under Austin v. State, 409 S.E.2d 395 (S.C. 1991), such an allowance by the state courts does not make the notice of appeal timely/properly filed under AEDPA considerations. McHoney v. South Carolina, 518 F. Supp. 2d 700, 705 (D.S.C. 2007). Whenever the time for appealing the first PCR lapsed, "Petitioner's application for further appellate review ceased to be 'pending' for purposes of calculating the tolling of the federal limitations period." Id. Hence, the time between the failure to appeal the first PCR and the filing of the second PCR is untolled time and cannot be considered the "pending" of any properly filed PCR. Id.

Accordingly, the Petitioner has at least 40 months of untolled time. This aggregate time period exceeds the one-year statute of limitations of 28 U.S.C. § 2244(d). See Harris v. Hutchinson,209 F.3d 325, 327 (4th Cir. 2000). Therefore, the present petition is time-barred and should be dismissed on that basis.

The habeas statute of limitations is subject to equitable tolling if 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 v. Florida, 560 U.S. 631, 649 (2010)(internal citation and quotation omitted). The only facts Petitioner has pleaded in regard to equitable tolling is that his attorney failed to notify him of the first PCR's dismissal until a significant amount of time had past. Attorney failures generally do not rise to the level of extraordinary circumstances. See Harris v. Hutchinson, 209 F.3d 325, 330-31 (4th Cir. 2000). Even if this court were to consider Petitioner's attorney's failure to be extraordinary circumstances, Petitioner has not shown that he has been pursuing his rights diligently. There is no evidence that warrants equitable tolling. Therefore, the Petition should be dismissed as barred by the statute of limitations. Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002);⁴ see also Day v. McDonough, 547 U.S. 198 (2006).

Furthermore, Petitioner alleges in both his Petition and the answers to the court's Special Interrogatories that any delay in appealing his first PCR was due to his PCR attorney's failure to notify him of its dismissal. Even if the court were to grant equitable tolling for this delay, Petitioner's habeas filing would still be untimely. Petitioner became aware on December 14, 2012, if not earlier, that the dismissal of his first PCR was not appealed. Petitioner filed a letter in thelower court at that time in regard to a belated appeal. Considering the requirement of petitioner's diligent pursuit for a grant of equitable tolling, Petitioner was not diligent from December 2012 to September 2013. In December 2012, Petitioner did not attempt to file a...