Opinion
C/A No.: 1:18-1511-CMC-SVH
02-25-2019
Johnnie Frazier, #265586, Petitioner, v. Warden of Lieber Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Johnnie Frazier ("Petitioner") is an inmate at the Lieber Correctional Institution of the South Carolina Department of Corrections who filed this pro se 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 Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. [ECF Nos. 19, 20]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion by October 26, 2018. [ECF No. 21]. Petitioner failed to respond, and the court issued an order on October 30, 2018, directing Petitioner to advise the court whether he wished to continue with his case and to file a response to the motion by November 13, 2018. [ECF No. 23]. Petitioner did not file a response.
On November 15, 2018, the undersigned filed a report and recommendation recommending Petitioner's complaint be summarily dismissed. [ECF No. 25]. The undersigned's recommendation was based on Petitioner's failure to respond to Respondent's summary judgment motion. Id. Petitioner objected to the report and recommendation, explaining he had been confined to his cell on lock down and was having difficulties completing his legal work. [ECF No. 27]. On December 5, 2018, the Honorable Cameron McGowan Currie, Senior United States District Judge, issued an order declining to adopt the report and recommendation and giving Petitioner until January 31, 2019, to respond to Respondent's summary judgment motion. [ECF No. 28]. This matter was subsequently recommitted to the undersigned. Id. Petitioner filed a response on February 1, 2019. [ECF No. 30].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment [ECF No. 20] be granted. I. Procedural Background
Petitioner was indicted by the Lexington County grand jury during the March 2006 term of court for possession of a firearm or knife during the commission of a violent crime (2006-GS-32-667), armed robbery (2006-GS-32-670), burglary in the first degree (2006-GS-32-671), and murder (2006-GS-32- 668. [ECF No. 19-3 at 216-21]. Petitioner was represented by Wayne Floyd, Esq., and proceeded to a multi-day jury trial before the Honorable James W. Johnson, Jr., Circuit Court Judge. [ECF No. 19-2 at 3 et seq.]. The jury was unable to reach a unanimous decision on the murder charge, on which Judge Johnson declared a mistrial. [ECF No. 19-3 at 62-63, 67-68]. The jury found Petitioner guilty on the remaining charges. Id. at 63-64. On April 11, 2008, Judge Johnson sentenced Petitioner to five years for the weapon conviction, 30 years for armed robbery, and life for burglary in the first degree. Id. at 87-88.
The murder indictment does not appear in the record.
Petitioner appealed his convictions to the South Carolina Court of Appeals ("Court of Appeals"). On appeal, Petitioner was represented by Deputy Chief Appellate Defender Wanda H. Carter, Esq., of the South Carolina Commission on Indigent Defense, Division of Appellate Defense. Id. at 90-101. Attorney Carter filed a final Anders brief on or about August 11, 2009, raising the following issue:
Anders v. California, 386 U.S. 738, 744 (1967), requires counsel who seeks to withdraw after finding the "case to be wholly frivolous" following a "conscientious examination" must submit a brief referencing anything in the record that arguably could support an appeal, furnish a copy of that brief to the defendant, and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited.
The lower court erred in denying appellant's motion to suppress the book bag and its contents as evidence in the case because these
items were obtained pursuant to an illegal search and seizure in the case.Id. at 93. Attorney Carter certified the appeal was without merit and asked to be relieved as counsel. Id. at 101. On August 25, 2010, the Court of Appeals filed an unpublished decision affirming Petitioner's conviction. Id. at 104-105. The remittitur was issued on May 5, 2011. [ECF No. 19-1].
Petitioner filed a pro se application for post-conviction relief ("PCR") on July 29, 2011, in which he alleged he was wrongfully convicted. [ECF No. 19-3 at 106-10]. Through counsel, Petitioner filed amendments to his PCR application on April 24, 2013, and January 22, 2014, alleging claims of ineffective assistance of trial counsel. Id. at 117-18, 121-22. Petitioner was represented by Kristy Goldberg, Esq., at a PCR evidentiary hearing held before the Honorable Brian M. Gibbons, Circuit Court Judge, on January 22, 2014, at which Petitioner and his trial counsel testified. Id. at 123-82. On January 11, 2016, Judge Gibbons filed an order of dismissal. Id. at 187-205. Petitioner filed a motion to alter or amend that Judge Gibbons denied in an order filed on February 2, 2016. Id. at 206-15.
Petitioner appealed the denial of his PCR. [ECF No. 19-4]. Appellate Defender Tiffany L. Butler, Esq., of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented him on appeal. [ECF No. 19-5]. Attorney Butler filed a petition for writ of certiorari in the South Carolina Supreme Court on or about August 10, 2016, raising the following issue:
Whether the PCR court erred by finding trial counsel provided effective representation where counsel failed to request an alibi jury instruction where counsel introduced evidence that Petitioner was with other people several miles away during the time frame of Carol Hursey's death, and there were no eyewitnesses or forensic evidence directly placing Petitioner at the crime scene?Id. at 3. The South Carolina Supreme Court transferred Petitioner's appeal to the Court of Appeals, and on January 16, 2018, the Court of Appeals denied the petition. [ECF No. 19-7]. The remittitur was issued on February 1, 2018. [ECF No. 19-8].
On May 29, 2018, Petitioner filed this federal petition for a writ of habeas corpus. [ECF No. 1-2 at 1]. II. Discussion
The petition was received and docketed by the court on June 4, 2018. [ECF No. 1]. However, because Petitioner is incarcerated, he benefits from the "prison mailbox rule." Houston v. Lack, 487 U.S. 266 (1988). The envelope containing the petition was deposited in the prison mailing system on May 29, 2018. [ECF No. 1-2 at 1].
A. Federal Habeas Issues
Petitioner states the following grounds in his habeas petition: Ground One: No Alibi Charge Requested
Supporting Facts: During trial my defence witness were for alibi and alibi charge was not requestedGround Two: golden rule vilation
Supporting Facts: Solister asked jury to put themselves in his shoes and feal what they feal.Ground Three: Exculpatory evidence not offers at trial
Supporting Facts: DNA found at crime scene not put into evidence by Attorney.Ground Four: Not advising client of Rite To Testafi
Supporting Facts: Attorney said he not put me up did not let me know Ive A Rite to Testifi[ECF No. 1 at 5-10] (errors in original).
B. Standard for Summary Judgment
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.
C. Analysis of Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") Bar
1. AEDPA's Statute of Limitations
Respondent seeks summary judgment, alleging the petition was not timely filed under the one-year statute of limitations. [ECF No. 19 at 9-11]. Because Petitioner filed his petition after the effective date of the AEDPA, review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Noland v. French, 134 F.3d 208, 213 (4th Cir. 1998). The AEDPA substantially modified procedures for consideration of habeas corpus petitions of state inmates in the federal courts. One of those changes was the amendment of 28 U.S.C. § 2244 to establish a one-year statute of limitations for filing habeas petitions. Subsection (d) of the statute 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.28 U.S.C. § 2244(d) (emphasis added). Subsection (d)(1)(A) provides the one-year statute of limitations begins to run on the date the petitioner's conviction becomes final, not after collateral review is completed. Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000). In South Carolina, a defendant must file a notice of appeal within ten days of his conviction. Rule 203(b)(2), SCACR. Thus, if a defendant does not file a direct appeal, his conviction becomes final ten days after the adjudication of guilt. Crawley v. Catoe, 257 F.3d 395, 398 (4th Cir. 2001). If a defendant files a direct appeal and his conviction is affirmed, the conviction becomes final 90 days after the final ruling of the South Carolina Supreme Court. Harris, 209 F.3d at 328, n.1 (noting conviction becomes final on the expiration of the 90-day period to seek review by the United States Supreme Court from a state's highest court; cf. Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002) (discussing procedure for district court's sua sponte timeliness analysis, noting limitations period begins to run when time for filing certiorari in the United States Supreme Court has elapsed).
The Hill court did not discuss whether the state court that had dismissed the petitioner's appeal was the state court of last resort.
The statute of limitations is tolled during the period "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). The statute of limitations is tolled for the entire period of the state post-conviction process, "from initial filing to final disposition by the highest state court (whether decision on the merits, denial of certiorari, or expiration of the period of time to seek further appellate review)." Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999). "Following the denial of relief in the state courts in state habeas proceedings, neither the time for filing a petition for certiorari in the United States Supreme Court, nor the time a petition for certiorari is considered by the United States Supreme Court, is tolled." Crawley v. Catoe, 257 F.3d at 399.
A state collateral proceeding must be "properly filed" for the statutory tolling provisions of 28 U.S.C. § 2244(d)(2) to apply. "[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Artuz v. Bennett, 531 U.S. 4, 8 (2000) (footnote omitted). "When a postconviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)." Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (quoting Carey v. Saffold, 536 U.S. 214, 226 (2002)). Generally, federal courts use Fed. R. Civ. P. 6(a) in computing periods of time under 28 U.S.C. § 2244(d)(2). Hernandez v. Caldwell, 225 F.3d 435, 439 (4th Cir. 2000).
In 2000, the Fourth Circuit held the AEDPA's statute of limitations is not jurisdictional, but subject to the doctrine of equitable tolling. The court found equitable tolling applies only in "those rare instances where—due to circumstances external to the [Petitioner's] own conduct—it would be unconscionable to enforce the limitation against the [Petitioner]." Harris, 209 F.3d at 330. In 2010, the United States Supreme Court squarely considered the issue and also held § 2244 "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010); cf. Pace v. DiGuglielmo, 544 U.S. at 418 n.8 (noting Court assumed without deciding the AEDPA's statute of limitations could be equitably tolled for purposes of that decision because respondent assumed it did). The Holland Court reiterated its prior holding in Pace that the statute would be equitable tolled "only if [the 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, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418)).
Under § 2244(d), the state bears the burden of asserting the statute of limitations. Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002). Petitioner then bears the burden of establishing his petition is timely or he is entitled to the benefit of the doctrine of equitable tolling. Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003).
2. Petitioner Did Not Timely File His Federal Petition
The undersigned finds Petitioner did not timely file his petition. The AEDPA one-year period of limitation begins to run at the "conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Because Petitioner did not seek review by the United States Supreme Court, the AEDPA's one-year statute of limitations began running "at the expiration of the time" for seeking direct review in state court. 28 U.S.C. § 2244(d)(1)(A). Petitioner's judgment of conviction therefore became final "when his time for seeking review with the State's highest court expired." Gonzalez v. Thaler, 132 S. Ct. 641, 653-54 (2012) (clarifying the Court's prior cases concerning 28 U.S.C. § 2244(d)(1)(A)).
The Court's Gonzalez decision makes it clear that, for a petitioner who did not seek review by filing a petition for writ of certiorari in that Court, no time is added to the expiration of the "time for seeking review from the State's highest court." 132 S. Ct. at 653-54. The Court contrasted its finding as to § 2244's statute of limitations with its cases interpreting the statute of limitations found in 28 U.S.C. § 2255(f)(1), which is applicable to federal prisoners seeking habeas relief. See 132 S. Ct. at 653 (noting federal judgment of conviction begins "'when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari,' or, if a petitioner does not seek certiorari, 'when the time for filing the certiorari petition expires.'") (quoting Clay v. United States, 537 U.S. 522, 527 (2003)).
The Court of Appeals affirmed Petitioner's convictions in an order filed on August 25, 2010. Petitioner then had fifteen days from the Court of Appeals' order within which to file a petition for rehearing. See Rule 221(a), SCACR ("Petitions for rehearing must be actually received by the appellate court no later than fifteen (15) days after the filing of the opinion, order, judgment, or decree of the court."). Because he did not file for rehearing, Petitioner's conviction became final on September 9, 2010, on the expiration of the fifteenth day for seeking direct review. See 28 U.S.C. § 2244(d)(1)(A); Gonzalez, 565 U.S. at 150. ("[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."). Petitioner's federal time began to run the following day, September 10, 2010. He filed his PCR application on July 29, 2011, after a lapse of 322 days, leaving 43 days of untolled time. The statute of limitations remained tolled until, at the very latest, February 5, 2018, upon the filing of the remittitur in Lexington County after the Court of Appeals' January 16, 2018 order denying the petition for writ of certiorari. Petitioner had until March 20, 2018, to file his federal habeas petition, but waited until May 29, 2018—at least 70 days too late. Because Petitioner filed outside the one-year statute of limitations, this action is untimely under 28 U.S.C. § 2244(d).
In Gonzalez, the Court rejected petitioner's argument that under § 2244(d)(1)(A) a judgment becomes final, for a petitioner who did not appeal to the state's highest court, on the date the state court issues its mandate. The Court explained that Petitioner's alternative reading of § 2244(d)(1)(A) was not supported by the statute's text or the Court's precedent. 564 U.S. at 151-52.
https://publicindex.sccourts.org/Lexington/PublicIndex/CaseDetails.aspx?County=32&CourtAgency=32002&Casenum=2011CP3202879&CaseType=V&HKey=7384117811215681117518356122120871005350851061191021137011898865550495481771027377768673657143101107
There remains a dispute among the District of South Carolina opinions concerning whether (1) the decision date, (2) the remittitur date, or (3) the date of receipt of the remittitur controls for purposes of calculating the statute of limitations. See, e.g., Smith v. Warden, Lieber Corr. Inst., No. 4:13-3090-BHH, 2014 WL 5503529, at *6 (D.S.C. Oct. 30, 2014) ("The [PCR] appeal was denied by the South Carolina Supreme Court on April 17, 2013, at which time the statute of limitations resumed."); Lewis v. Cartledge, No. 1:12-2584-SB, 2014 WL 517469, at *2 (D.S.C. Feb. 6, 2014) ("The statute remained tolled until the South Carolina Supreme Court denied certiorari [in Petitioner's PCR appeal] on June 12, 2008. On [date], the statute began to run again . . . ."); Ramirez v. Rawski, No. 1:13-cv-00200-JMC, 2013 WL 5657655, at *7 (D.S.C. Oct. 15, 2013) ("The statute of limitations remained tolled until the South Carolina Supreme Court denied certiorari on January 12, 2012.") (citing Gonzalez); Goodman v. McCabe, No. 1:13-cv-594-RMG, 2013 WL 5530522, at *2 (D.S.C. Oct. 7, 2013) ("[T]he Court agrees with the Magistrate Judge's thorough analysis regarding the application of AEDPA's statute of limitations to the facts of this case and agrees that it operates to bar this action."), adopting in part No. 1:13-594-RMG-SVH, 2013 WL 5530520, at *3-6 (D.S.C. Sept. 6, 2013) ("The statute of limitations remained tolled until the South Carolina Supreme Court denied certiorari on August 5, 2010."); cf. Johnson v. Warden, Lee Corr. Inst., No. 2:14-cv-0768 DCN, 2015 WL 1021115, at *9 (D.S.C. Mar. 9, 2015) ("The statute of limitations remained tolled during the pendency of the PCR action which began on April 13, 2009, and lasted until the Remittitur for the PCR Appeal was issued on June 20, 2013."); Byers v. Warden of McCormick Corr. Inst., No. 8:14-cv-0969 DCN, 2015 WL 846544, at *8 (D.S.C. Feb. 26, 2015) (using date remittitur was issued); Brannon v. Stevenson, No. 9:13-cv-1792-RMG, 2014 WL 4954884, at *14 (D.S.C. Sept. 29, 2014) (using the date the remittitur was issued "out of an abundance of caution and in light of Petitioner's pro se status, and in order to allow for a more thorough analysis of Petitioner's claims"); Bradshaw v. McCall, No. 0:12-cv-03624-DCN, 2014 WL 463142, at *7 n.3 (D.S.C. Feb. 4, 2014) (using the date the remittitur was issued "out of an abundance of caution" but recognizing "that case law may support the assertion that [ ] a state PCR action is no longer pending for purposes of § 2244(d)(2) once a state appellate court has denied relief"); Atchison v. Warden of Broad River Corr. Inst., No. 9:10-2059-SB-BM, 2011 WL 2728469, at *3 n.7 (D.S.C. May 26, 2011) (using date remittitur was issued); Beatty v. Rawski, No. 1:13-3045-MGL-SVH, 2015 WL 1518083, at *2-6 (D.S.C. Mar. 31, 2015)(rejecting use of decision date in the report and recommendation and holding the date the remittitur was filed in circuit court for purposes of calculating the statute of limitations); Beatty v. Rawski, 1:13-3045-MGL-SVH (D.S.C. July 12, 2015) (denying Respondent's Fed. R. Civ. P. 59 motion).
3. Petitioner Has Not Demonstrated Entitlement to Equitable Tolling
Petitioner has not shown equitable tolling principles should apply to permit review of his time-barred claims. To benefit from the doctrine of equitable tolling, Petitioner must show "'(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland, 560 U.S. at 659 (quoting Pace, 544 U.S. at 418); see also Rouse, 339 F.3d at 246 (holding that, for equitable tolling to apply, petitioner must show that there was 1) an "'extraordinary circumstance,' 2) beyond his control or external to his own conduct, 3) that prevented him from filing on time."). Petitioner has not alleged, and the record does not reflect, any extraordinary circumstances to warrant equitable tolling.
Accordingly, the undersigned recommends the petition be dismissed on statute-of-limitations grounds. Having found the statute of limitations bars Petitioner's § 2254 petition, the undersigned is precluded from addressing the merits of his claims. See Kornahrens v. Evatt, 66 F.3d 1350 (4th Cir. 1995) (finding once a claim is determined to be procedurally barred, the court should not consider the issue on its merits). III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Respondent's motion for summary judgment [ECF No. 20] be granted.
IT IS SO RECOMMENDED. February 25, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).