Opinion
C/A 1:23-1791-JD-SVH
10-17-2023
Patrick Dean Lowrance, #353834, Petitioner, v. Warden Nance, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Patrick Dean Lowrance (“Petitioner”) is an inmate at Tyger River Correctional Institution (“TRCI”) in South Carolina 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. 24,25]. 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. [ECF No. 26]. Petitioner filed a response on October 6, 2023. [ECF No. 30].
On June 14, 2023, Petitioner also filed a motion to stay this case [ECF No. 7]. The undersigned issued a report and recommendation on July 14, 2023, recommending the district judge deny the motion to stay. [ECF No. 13]. That report and recommendation remains pending before the district judge.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted.
I. Factual and Procedural Background
At his trials, the State presented evidence that during a traffic stop in Greenville County, South Carolina, on October 28, 2011, Petitioner refused to yield or stop for blue lights and instead fled. Petitioner's vehicle was discovered to be stolen, and officers received a call of a suspicious person in the area. Officers arrived at the scene and entered a breezeway off an apartment building, encountering Petitioner, who began shooting at both officers.
The Greenville County Grand Jury indicted Petitioner in March 2012 for possession of a stolen motor vehicle, failure to stop for a blue light, two counts of attempted murder, and possession of a weapon during the commission of a violent crime (2012-GS-23-01422, -01423, -01424, -01425, and -01426). [ECF No. 24-5 at 1228-1235, see also, e.g., ECF No. 24-5 at 1259]. The case was prosecuted by Assistant Deputy Solicitor Lucas C. Marchant, and attorneys Brian Johnson and John Crangle represented Petitioner. [ECF No. 24-1 at 1]. Petitioner originally proceeded to trial by jury before the Honorable Steven H. John, Circuit Court Judge, on October 8-11, 2012, but the jury only convicted him of possession of a stolen motor vehicle and remained hung on the other indictments. Id. at 1-391.
Petitioner proceeded to trial by jury a second time on January 7-10, 2013, before the Honorable Letitia H. Verdin, Circuit Court Judge, with the same attorneys appearing. [ECF No. 24-2 at 392]. Petitioner was found guilty on all remaining counts. [ECF No. 24-5 at 1086]. Judge Verdin sentenced Petitioner to three years for failure to stop for a blue light, 28 years concurrent for each of the attempted murder convictions, and five concurrent years for the weapons conviction. Id. at 1103.
Petitioner timely appealed his convictions and sentences, raising one issue:
Was Officer Cruell's single-photo identification of Mr. Lowrance after being given his name as a suspect so unduly suggestive and unreliable that allowing Officer Cruell to identify Mr. Lowrance to the jury violated Mr. Lowrance's right to due process of law under Neil v. Biggers and State v. Moore?[ECF No. 24-5 at 1243].
Officer Cruell testified that, on the incident day, she was on patrol and ran the tag on an SUV parked in a hotel parking lot and discovered it was registered to a different vehicle. [ECF No. 24-1 at 87-88]. Cruell went into the hotel and, while speaking with a hotel employee, claimed she saw a black male with long hair who appeared to be 35-40 years old walking through the hotel lobby. Id. at 88. Cruell attempted to stop the vehicle when it left the hotel, but the driver refused to yield or stop for blue lights and instead fled. Id. at 88-89. The following day when Cruell reported to work, another officer told her the name of the person they had been eventually arrested that night in connection with the incident. Id. at 91-92. Cruell searched the police department's “internal database” where officers are able to view recent photographs from the detention center, and identified Petitioner as the person she had seen walking through the hotel lobby the previous day. Id. at 92.
The South Carolina Court of Appeals (“Court of Appeals”) affirmed in an unpublished per curiam opinion on April 12, 2017, finding the issue was procedurally barred for failure to raise in the second trial. Id. at 1284-85. Petitioner did not appeal to the South Carolina Supreme Court.
Petitioner filed an application for post-conviction relief (“PCR”) on April 23, 2018, [ECF No. 24-5 at 1105-11], with the following claims and allegations of error of ineffective assistance of counsel:
• Failure to properly prepare and investigate prior to trial;
• Failure to properly preserve issues for appeal; and
• Failure to conduct an independent investigation and properly review evidence with applicant prior to his trial date.Id.
Petitioner also asserted an ineffective assistance of appellate counsel claim, but did not pursue the claim at the evidentiary hearing. [ECF No. 24-5 at 1105-11, 1190-93, 1206].
An evidentiary hearing was held on October 21, 2019, before the Honorable Edward W. Miller, Circuit Court Judge. [ECF No. 24-5 at 1118]. Assistant Attorney General Taylor Z. Smith represented the State, and attorney R. Mills Ariail, Jr., represented Petitioner. Id. The court heard testimony from Petitioner, John Crangle, Brian Johnson, and David Jones and admitted no exhibits. Id. at 1119-20.
Petitioner proceeded on the following claims at the hearing:
1. Trial counsel was constitutionally ineffective for failing to review discovery with Applicant;
2. Failing to move to change the venue;
3. Failing to object to the trial court's jury instruction on accomplice liability; and
4. Failure to preserve issues for appellate review.[See ECF No. 24-5 at 1194-1200, 1206].
Judge Miller denied Petitioner relief in an order on February 18, 2020, and dismissed his application with prejudice. Id. at 1203-1227. Petitioner timely appealed to the South Carolina Supreme Court via a petition for writ of certiorari, raising one issue:
Did the PCR court err by ruling petitioner was not prejudiced by defense counsel's failure to request a Biggers hearing or otherwise object to Officer Cruell's in-court identification of petitioner where the procedure for identification was unduly suggestive and the issue was found procedurally barred on direct appeal?[ECF No. 24-9, ECF No. 24-10].
In March 2021, the Supreme Court of South Carolina transferred the PCR appeal to the Court of Appeals pursuant to Rule 243(1), SCACR. [ECF No. 24-12]. The Court of Appeals subsequently denied the petition on August 16, 2022, and the remittitur was issued on September 8, 2022. [ECF No. 24 13, ECF No. 24-14]. The Greenville County Clerk of Court filed the remittitur on September 20, 2022. [ECF No. 24-14].Petitioner mailed his federal petition for writ of habeas corpus on April 20, 2023.
Petitioner filed a second PCR application on October 19, 2022, arguing two claims, ineffective assistance of counsel for failure to object or bring to the court's attention that the court failed to charge specific intent to the jury and for failure to object or file a motion because the judge did not ask Petitioner if he had anything to say before his sentence was imposed. [See ECF No. 24-8 at 10, see also ECF No. 13].
Under South Carolina law, “[t]he final disposition of a case occurs when the remittitur is returned by the clerk of the appellate court and filed in the lower court.” Christy v. Christy, 452 S.E.2d 1, 4 (S.C. Ct. App. 1994); see also Beatty v. Rawski, 97 F.Supp.3d 768, 774 (D.S.C. 2015) (“. . . there can be no question that South Carolina law states that the final disposition of an appeal does not occur until after the remittitur is filed in the circuit court.”).
Because Petitioner is incarcerated, he benefits from the “prison mailbox rule.” Houston v. Lack, 487 U.S. 266 (1988). The petition includes a date stamp reflecting it was received by the prison mailroom on April 20, 2023. [ECF No. 1-2].
II. Discussion
A. Federal Habeas Issues
Petitioner raises the following grounds for relief:
Ground One: Defense Counsel[‘s] failure to request a Biggers hearing or otherwise object to Officer Cruell's in-court identification of Petitioner.
Supporting Facts: The State claimed that Petitioner, unprovoked, open[ed] gunfire on two officers in the breezeway of an apartment building and then evaded law enforcement for a second time. Cr[u]ell claimed she saw a black male with long hair who appeared to be thirty-five to forty years old walking through the hotel lobby. Cruell search[ed] the police department's internal database where officers are able to view recent photograph[s] from the detention center and identified Petitioner as the person she had seen walking through the hotel lobby the previous day.
Ground Two: Ineffective assistan[ce] of counsel for failure to object or bring to the court[‘s] attention that the court failed to charge specific intent.
Ground Three: Ineffective assistan[ce] of counsel for failure to . . .because the judge did not ask the defendant if he had anything to say before sentence.
Ground Four: Ineffective assistan[ce] of counsel for failure to object to Judge[] Verdin's instruction to the jury on the theory of accomplice liability.[ECF No. 1 at 5-10 (punctuation and capitalization altered)].
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. However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry 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(e).
C. Habeas Corpus Standard of Review
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 410. Moreover, state court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
D. Analysis
Under the AEDPA, a § 2254 petition must be filed within one year of the date on which the state court judgment became final by the conclusion of direct review or the expiration of the time for seeking review. 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled during the pendency of a properly-filed state post-conviction action, 28 U.S.C. § 2244(d)(2), but not the filing of a petition for habeas corpus in federal court. See Duncan v. Walker, 533 U.S. 167, 172-73 (2001) (finding that federal habeas petitions are not included within 28 U.S.C. § 2244(d)(2)'s provision that tolls the one year while collateral actions are pending).
Respondent calculates that Petitioner was sentenced on the charges he now challenges on January 10, 2013, tolling the statute of limitations until his direct appeal concluded on April 12, 2017. Granting fifteen days to appeal, the statute of limitations resumed on April 27, 2017. See Rule 221(a), SCACR. It was tolled again with the filing of his first PCR application on April 23, 2018, after 361 days had passed. The remittitur ending the PCR appeal was filed with the Greenville County Clerk on September 20, 2022, triggering the clock to resume. Petitioner delivered his habeas petition to the prison mailroom on April 20, 2023, 212 days later, which is added to the 361 already-accumulated days, for a total of 573. As argued by Respondent, because more than one year passed, Petitioner's habeas petition is untimely. [See ECF No. 24 at 8].
The court previously calculated the total applicable time elapsed as 578 days instead of the 573 days calculated above. [See ECF No. 13 at 5-6]. Under either calculation, Petitioner is out of time.
Additionally, equitable tolling principles do not apply to otherwise permit a review of Petitioner's time-barred claims. The Supreme Court has held that the statute of limitations for habeas petitions “is subject to equitable tolling in appropriate cases.” Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). The limitations period should be equitably 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.” Id. at 2562. Here, Petitioner has not alleged-nor does the record reflect-an extraordinary circumstance to warrant equitable tolling.
Petitioner does not argue equitable tolling is warranted nor dispute the above dates showing his petition is barred by the applicable statute of limitations. However, he cites Plaskett v. Cruz, 282 F.Supp.3d 912, 914 (D.S.C. 2017), in support of his argument that this court does not have jurisdiction over his petition in that Respondent is not the person who has custody over Petitioner and thus not the proper respondent. See id. (“The federal habeas statute straightforwardly provides . . . the proper respondent to a habeas petition is the person who has custody over [the petitioner].”) (citation omitted)).
Petitioner has named the Warden of TRCI, where he is incarcerated, as the responding party, and there is no indication this court lacks jurisdiction over the petition. See, e.g., Davis v. S.C. Dept of Corr., C/A No. 0:13-00765-TLW, 2013 WL 3929810, at *1 n.2 (D.S.C. July 29, 2013) (“Generally, only the warden with custody of the petitioner is properly named as a respondent in a habeas corpus action.”) (citing Rumsfeld v. Padilla, 542 U.S. 426, 464-35 (2004); 28 U.S.C. § 2242)); see also https://public.doc.state.sc.us/scdc-public/ (last visited October 17, 2023 (inmate search indicating that Petitioner is incarcerated at TRCI); https://www.doc.sc.gov/institutions (last visited October 17, 2023) (indicating the Warden of TRCI is Jonathan Nance).
A court may take judicial notice of factual information located in postings on government websites. See Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (finding that court may “properly take judicial notice of matters of public record”).
Accordingly, the undersigned recommends the district judge grant Respondent's motion for summary judgment, dismissing the petition with prejudice as barred by the applicable statute of limitations.
The undersigned addressed Petitioner's arguments in conjunction with his motion to stay in a prior report and recommendation. [See ECF No. 13].
III. Conclusion and Recommendation
For the foregoing reasons, the recommends the court grant Respondent's motion for summary judgment [ECF No. 25] and dismiss the petition with prejudice.
Given the recommendation above, it is unnecessary to further address Respondent's argument that Petitioner's Grounds Two and Three are procedurally barred for failure to exhaust-issues addressed previously. [See ECF No. 24 at 7, ECF No. 13].
IT IS SO RECOMMENDED.
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).