Opinion
CA 9:20-cv-03081-HMH-MHC
07-06-2021
Edward C. Tyler, Petitioner, v. Warden Kenneth Sharp, Respondent.
REPORT AND RECOMMENDATION
Molly H. C herry United States Magistrate Judge
Petitioner Edward C. Tyler (“Petitioner”), a state prisoner proceeding pro se, petitions the court for a writ of habeas corpus under 28 U.S.C. § 2254 (“Petition”). This matter is before the Court, pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment (“Respondent's Motion”). ECF Nos. 21, 22.
On January 4, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court advised Petitioner of Respondent's summary judgment motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion by February 4, 2021. ECF No. 23. Petitioner moved for and received extensions of time to file his Response on February 2 and April 5, 2021. ECF Nos. 25, 26, 28, 29. On May 4, 2021, Petitioner filed a Motion for Partial Summary Judgment (“Petitioner's Motion”). ECF No. 31. Respondent filed a Response to Petitioner's Motion on May 18, 2021, ECF No. 32, and Petitioner did not file a reply.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 22, be granted and Petitioner's Motion for Partial Summary Judgment, ECF No. 31, be denied.
I. BACKGROUND
In January 2007, the Bamberg County Grand Jury indicted Petitioner for murder, criminal domestic violence, and possession of a firearm during the commission of a violent crime. ECF No. 21-1 at 128, 136-37. On June 4, 2008, Petitioner pled guilty to murder in exchange for 40 years imprisonment, pursuant to a negotiated plea agreement. ECF No. 21-1 at 97. Petitioner was represented during his plea by Richard Ness (“Plea Counsel”). ECF No. 21-1 at 9. Petitioner did not appeal his sentence. ECF No. 21-1 at 2.
Because a transcript of Petitioner's guilty plea was not ordered within five years, it was destroyed and is unavailable. ECF No. 21-1 at 127.
On February 25, 2013, Petitioner applied for post-conviction relief (“PCR”), asserting ineffective assistance of Plea Counsel for failing to investigate and pursue a battered spouse defense and arguing that Plea Counsel's ineffective assistance rendered his plea involuntary. ECF No. 21-1 at 7. In addition, Petitioner argued the state court should entertain his untimely PCR application under Ferguson v. State, 677 S.E.2d 600 (S.C. 2009), because he was prevented from filing sooner by mental incapacity. ECF No. 21-1 at 5, 22-24.
On July 30, 2014, the Honorable R. Knox McMahon, Circuit Court Judge, conducted a Ferguson hearing. ECF No. 21-1 at 33-51. Petitioner was represented at the hearing by Janek Kazmierski (“PCR Counsel”). ECF No. 21-1 at 33. On October 13, 2014, Judge McMahon found Petitioner's mental incapacity prevented him from filing a PCR application until “sometime in the middle of 2012” and tolled the statute of limitations until that time. ECF No. 21-1 at 54. Petitioner's PCR application was therefore timely and subject to review on the merits. ECF No. 21-1 at 55.
On May 21, 2015, the Honorable Tanya A. Gee, Circuit Court Judge, conducted an evidentiary hearing on the merits of Petitioner's application. ECF No. 21-1 at 57-126. Judge Gee heard testimony from Petitioner, Plea Counsel, and the assistant solicitor in charge of Petitioner's case, Benjamin Robert Moore. ECF No. 21-1 at 58. Judge Gee dismissed Petitioner's application on March 14, 2016. ECF No. 21-1 at 128-35.
Petitioner timely appealed, ECF No. 21-2 at 1, and on November 17, 2016, PCR Counsel a Johnson petition for a writ of certiorari presenting the following issue:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988). A Johnson petition is the state PCR appeal analogue to an Anders brief. See Anders v. California, 386 U.S. 738 (1967) (providing a framework for counsel to withdraw where an appeal lacks merit).
Did the PCR court err in finding that Petitioner knowingly, voluntarily, and intelligently pled guilty where Petitioner based his decision to plead guilty on plea counsel's advice when Petitioner had no knowledge of plea counsel's failure to investigate a possible battered spouse defense?ECF No. 21-3 at 3. The Supreme Court of South Carolina denied certiorari on March 24, 2017, ECF No. 21-4, and issued the remittitur on April 11, 2017, ECF No. 21-5. The court mailed a copy of the order denying certiorari to Petitioner on March 24, 2017. ECF No. 21-7. It was received in the South Carolina Department of Corrections (“SCDC”) Lee Correctional Institution mail room on March 27, 2017. ECF No. 21-7. It was marked “unclaimed as of 4/10/17” and returned to the court on April 14, 2017. ECF No. 21-7. The court mailed a copy of the remittitur to Petitioner on April 11, 2017. ECF No. 21-8. It was received by the Lee Correctional Institution mail room on April 13, 2017, marked “unclaimed by inmate as of 4/26/17, ” and returned to the court on April 29, 2017. ECF No. 21-8. The Bamberg County Clerk of Court filed the remittitur on April 13, 2017. ECF No. 21-6.
On August 27, 2019, Petitioner filed his first federal habeas petition in this court. See ECF No. 1, Tyler v. Warden, No. 9:19-cv-02421-HMH (“First Habeas Action”). Petitioner re-asserted his PCR appeal ground, indicated his PCR appeal was still pending in state court, and asked this court to consider his petition because of the state court's inordinate delay. Id. at 5-6, 8. The court granted Respondent three extensions of time and mailed copies of the corresponding orders to Petitioner. ECF Nos. 14, 17, 20, First Habeas Action. The order granting the third extension was returned as unclaimed on February 24, 2020. ECF No. 25, First Habeas Action. Respondent filed a Return and Motion for Summary Judgment on February 12, 2020 that indicated the South Carolina Supreme Court had denied Petitioner's PCR appeal over two years prior to his habeas petition. ECF No. 21 at 6, First Habeas Action. Petitioner failed to respond to Respondent's motion and, on February 25, 2020, the court issued a Report and Recommendation recommending dismissal of the petition without prejudice, unless Petitioner notified the court he wanted to continue with the case. ECF No. 26, First Habeas Action. After receiving no response from Petitioner, the court dismissed the action without prejudice on March 23, 2020. ECF No. 28, First Habeas Action.
Petitioner filed his current Petition on August 27, 2020. ECF No. 1.
On September 21, 2020, Petitioner moved for reconsideration in the First Habeas Action, based on his assertion that he did not receive Respondent's Motion for Summary Judgment or the final order in the case until April 2020, because of mail room misconduct. ECF No. 31 at 2-3, First Habeas Action. The court denied Petitioner's Motion for Reconsideration on October 20, 2020. ECF No. 33, First Habeas Action.
II. STANDARDS OF REVIEW
A. Summary Judgment Standard
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Id. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only 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.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). However, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
B. Federal Habeas Review under 28 U.S.C. § 2254
Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). ECF No. 1. Therefore, in considering Petitioner's claims, the Court's review is limited by the deferential standard of review set forth in 28 U.S.C. § 2254(d). See Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under § 2254(d):
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim--
(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 State court proceeding.28 U.S.C. § 2254(d); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (explaining federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, ” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding”).
A state court's decision is contrary to clearly established federal law if that court “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Evans, 220 F.3d at 312 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision unreasonably applies clearly established federal law if the state court “identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quoting Williams, 529 U.S. at 413).
Because “review under § 2254(d)(1) focuses on what a state court knew and did, ” this Court measures the reasonableness of the state court's decision based on the information in the record before the state court. Valentino v. Clarke, 972 F.3d 560, 575 (4th Cir. 2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). “Likewise, § 2254(d)(2) provides for a limited review of factual determinations in light of the evidence presented in the State court proceeding[;] [thus, ] [t]his backward-looking language similarly requires an examination of the state-court decision at the time it was made.” Id. (citation and internal quotation marks omitted).
Accordingly, “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.” Williams, 529 U.S. at 410. Further, factual findings “made by a State court shall be presumed to be correct, ” and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
C. Procedural Bar
Federal law establishes this Court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States[, ]” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural default/bypass operate in a similar manner to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this Court before a petitioner has appropriately exhausted available state-court remedies or after a petitioner has otherwise defaulted/bypassed seeking relief in the state courts will be dismissed absent unusual circumstances, as detailed below.
1. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies. See 28 U.S.C. § 2254(b)-(c). The statute requires that, before seeking habeas corpus relief, a petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). Stated plainly, in the interest of giving state courts the first opportunity to consider alleged constitutional errors in state proceedings, a § 2254 petitioner is required to “exhaust” all state remedies before a federal district court can entertain his claims. Thus, a federal habeas court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will generally result in the application of a procedural bar by the South Carolina Supreme Court. See Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009) (discussing procedural bar and noting the “general rule” in South Carolina is that where a party fails to file a Rule 59(e) motion, the argument is forfeited). Furthermore, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. A PCR application must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45. In South Carolina, a claim is not procedurally barred from review in this Court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the Court of Appeals. See Remedies in Criminal and Post-Conviction Relief Cases, 321 S.C. 563, 564, 471 S.E.2d 454 (S.C. 1990) (“[W]hen the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies.”).
2. Procedural Default/Bypass
When a federal habeas petitioner has failed to raise a claim at the appropriate time in state court and has no further means of bringing that issue before the state courts, the claim will be considered procedurally defaulted, and he will be procedurally barred from raising the issue in his federal habeas petition. Smith v. Murray, 477 U.S. 527, 533 (1986). This situation is sometimes referred to as procedural bypass, as the petitioner has “bypassed” his state remedies. In other words, procedural default/bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Id. Procedural default/bypass can occur at any level of the state proceedings, if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. See, e.g., Evans v. State, 611 S.E.2d 510, 515 (S.C. 2005) (noting an “issue or argument which is neither raised at PCR hearing nor ruled upon by the PCR court is procedurally barred from appellate review” (citation omitted)). Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the United States Supreme Court explains:
[state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984). If a federal habeas petitioner has procedurally defaulted his opportunity for relief in the state courts, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), overruled on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). Thus, where the state court has not had the opportunity to apply its own procedural bar, the federal court will nevertheless bar the claim where application of the bar is clear. Teague v. Lane, 489 U.S. 288, 297-98 (1989).
3. Cause and Actual Prejudice
Notwithstanding the foregoing, a federal court may consider claims that have not been presented to the highest South Carolina court with jurisdiction in very limited circumstances. See Granberry v. Greer, 481 U.S. 129, 131 (1987). Indeed, because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the state's courts in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or by “prov[ing] that failure to consider the claims will result in a fundamental miscarriage of justice.” Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008).
A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor which hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Murray v. Carrier, 477 U.S. 478, 488-97 (1986). Absent a showing of cause, the court is not required to consider actual prejudice. Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Id. at 496.
III. DISCUSSION
It appears that Petitioner intended to raise two grounds for relief. Rather than stating those grounds and the facts supporting them in the designated areas on his form § 2254 petition, Petitioner wrote “see attachment.” ECF No. 1 at 5, 7. However, Petitioner did not file an attachment with his Petition. See generally ECF No. 1. On August 28, 2020, the Court sent Petitioner a Proper Form Order notifying him of this error, ECF No. 5 at 1, but Petitioner did not respond to this portion of the Order. Left to guess at Petitioner's claims for relief, Respondent submitted a Return and Motion for Summary Judgment addressing the grounds Petitioner raised in the First Habeas Action. See ECF No. 21 at 16-21. In addition, Respondent asserted this Petition should be dismissed for failure to state a claim under Rule 2(c) of the Rules Governing § 2254 Cases in the United States District Courts and is barred by AEDPA's statute of limitations. Id. at 9-12, 16.
The Proper Form Order also informed Petitioner he had failed to pay the filing fee. ECF No. 5 at 1. In response, Petitioner submitted a Motion for Leave to Proceed In Forma Pauperis, thus indicating he did receive the Proper Form Order and was able to file a timely response. See ECF No. 7. In fact, the Court received Petitioner's Motion for Leave to Proceed In Forma Pauperis seven days ahead of the deadline. See id.
In response to Respondent's Return and Motion for Summary Judgment, Petitioner filed a “Motion for Partial Summary Judgment, ” alleging for the first time ever that he received a sentence 10 years over the statutory maximum, Plea Counsel was ineffective for failing to object to the length of the sentence, and his plea was involuntary due to Plea Counsel's ineffective assistance. ECF No. 31 at 7-26.
A. Rule 2(c)
Rule 2(c) of the Rules Governing § 2254 Cases in the United States District Courts requires that a § 2254 petition “(1) specify all the grounds for relief available to the petitioner” and “(2) state the facts supporting each ground.” Rule 2(c)(1), (2), Rules Governing § 2254 Cases. “‘[I]n order to substantially comply with the Section 2254 Rule 2(c), a petitioner must state specific, particularized facts which entitle him or her to habeas corpus relief for each ground specified.'” Bullard v. Chavis, 153 F.3d 719, 1998 WL 480727, at *2 (4th Cir. 1998) (Table) (quoting Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990)). “‘These facts must consist of sufficient detail to enable the court to determine, from the face of the petition alone, whether the petition merits further habeas corpus review.'” Id.
As Petitioner failed to state any grounds or supporting facts in his Petition, the Petition is subject to summary judgment under Rule 2(c). Petitioner's Motion for Partial Summary Judgment does not address Respondent's Rule 2(c) argument, see generally ECF No. 31, nor does it cure this deficiency, see Barclay White Skanska, Inc. v. Battelle Mem'l Inst., 262 Fed.Appx. 556, 563 (4th Cir. 2008) (finding plaintiffs may not raise new claims in response to a motion for summary judgment).
B. Statute of Limitations
In addition, the Petition is barred by the statute of limitations. The AEDPA sets a one-year statute of limitations for the filing of habeas petitions that begins to run upon the conclusion of direct review “or the expiration of the time for seeking such review” or “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.” 28 U.S.C. § 2244(d)(1)(A), (B). However, the statute tolls the limitations period during the time “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2).
The statute provides for two other possible starting dates not applicable here. See § 2244(d)(1)(C), (D).
As stated above, Petitioner pled guilty and was sentenced on June 4, 2008. Petitioner did not file a direct appeal, so his conviction became final and the statute of limitations began to run 10 days later, on June 14, 2008. See Rule 203(b)(2), SCACR. Petitioner filed his PCR application on February 25, 2013-over four years later. However, the PCR court tolled the state statute of limitations until “the middle of 2012” and considered Petitioner's PCR claims on the merits. Assuming Petitioner's PCR application can thus be considered “properly filed” and the AEDPA statute of limitations similarly tolled until the middle of 2012, his state collateral relief action concluded on April 13, 2017, when the Bamberg County Clerk of Court filed the remittitur. See Beatty v. Rawski, 97 F.Supp.3d 768, 772-76 (D.S.C. 2015) (tolling statute of limitations until the remittitur is filed in the circuit court). Petitioner commenced the First Habeas Action on August 22, 2019-over two years later. And Petitioner did not file the present § 2254 Petition, raising new and different grounds, until August 27, 2020-over three years after his state action concluded. Under even the most liberal construction of time, over 365 days have passed since Petitioner's conviction became final, discounting the time his PCR application was pending before the state court.
Even if the August 2019 petition had been timely, the statute of limitations continued to run during the pendency of that action. Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (finding that though the limitation period is tolled during the pendency of a state post-conviction proceeding under § 2244(d)(2), it is not tolled during the pendency of a federal habeas petition).
Alternatively, Petitioner asserts the Court should find his Petition timely under 28 U.S.C. § 2244(d)(1)(B), which starts the limitation period on “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.” ECF No. 31 at 21- 25. By its express terms, to warrant delayed accrual under § 2244(d)(1)(B), Petitioner must show that: “(1) he was prevented from filing a petition (2) by State action (3) in violation of the Constitution or federal law.” Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003).
Petitioner alleges he never received the South Carolina Supreme Court's order denying his petition for certiorari or the remittitur and, thus, did not know his state action had concluded until April 2020, when he received Respondent's Return in the First Habeas Action. ECF No. 31 at 22- 23. He further argues SCDC officials consistently fail to deliver inmates' legal mail, either in a timely manner or at all, thus violating SCDC's own policies and procedures. Id.
First, Petitioner cannot show that state action prevented him from filing a petition because he did, in fact, file a petition while SCDC officials were allegedly mishandling his legal mail. Second, Petitioner has not alleged that SCDC's actions violated federal or constitutional law, only SCDC's own internal policies. Accordingly, Petitioner has not shown that § 2244(d)(1)(B) applies.
Further, to the extent Petitioner seeks equitable tolling, his circumstances do not warrant such an extraordinary remedy. The AEDPA statute of limitations is subject to equitable tolling, but only in “those rare instances where-due to circumstances external to the party's own conduct-it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). Thus, to invoke the doctrine of equitable tolling, a petitioner bears the burden of establishing “(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time.” Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003). Petitioner must also show “that he has been pursuing his rights diligently.” Holland v. Florida, 560 U.S. 631, 649 (2010).
Petitioner's filing history in this Court suggests a lack of diligence. The Court dismissed the First Habeas Action after Petitioner failed to respond to Respondent's Motion for Summary Judgment or object to the Report and Recommendation. See Opinion & Order, ECF No. 28, First Habeas Action. Petitioner alleges he did not receive Respondent's motion or the final order and judgment in that action until April 2020. ECF No. 31 at 22. Even assuming the truth of Petitioner's allegation, he took no further action until August 2020, when he filed the current Petition. Then, despite receiving notice in August 2020 that he failed to file the attachment referenced in his Petition, Petitioner never submitted the attachment and did not state his grounds for relief until his May 2021 Motion for Partial Summary Judgment.
Petitioner also alleges he never received the Report and Recommendation. ECF No. 31 at 22.
As noted above, Petitioner apparently received the Court's August 28, 2020 Proper Form Order because he timely submitted the requested Motion for Leave to Proceed In Forma Pauperis. See ECF Nos. 5, 7.
Second, Petitioner has not shown he was prevented from filing by extraordinary circumstances beyond his control. While Petitioner alleges SCDC failed to give him his mail, the returned envelopes are marked “unclaimed, ” suggesting Petitioner, not SCDC, was responsible for not receiving his mail. See ECF Nos. 21-7 at 2, 21-8 at 2; ECF No. 25, First Habeas Action; see also Rouse, 339 F.3d at 246 (“Principles of equitable tolling do not extend to garden variety claims of excusable neglect.”).
Nor can Petitioner show enforcement of the statute of limitations would result in gross injustice. Petitioner's grounds for relief boil down to a misunderstanding of South Carolina's statute governing punishment for murder, SC Code Ann. § 16-3-20. Petitioner asserts the version of the statute in effect when he pled guilty provided for sentences of death, imprisonment for life, or a maximum of 30 years. ECF No. 31 at 7-9. That version of the statute read, “A person who is convicted of or pleads guilty to murder must be punished by death, by imprisonment for life, or by a mandatory minimum term of imprisonment for thirty years.” S.C. Code Ann. § 16-3-20 (2006). Petitioner apparently reads the term “minimum” to mean “maximum” as he contends the plea judge could not statutorily impose a 40-year sentence. This is simply incorrect. Petitioner's ineffective-assistance-of-counsel and involuntary-plea claims rest on this incorrect interpretation of the statute and, thus, lack merit. No. gross injustice can result from declining to consider Petitioner's meritless claims. Accordingly, the Petition is time-barred by the AEDPA's statute of limitations.
Even if Petitioner could get past his pleading deficiency and the statute of limitations, his grounds for relief are procedurally defaulted. Petitioner asserts cause and prejudice to excuse the default under Martinez v. Ryan, 566 U.S. 1 (2012). ECF No. 41 at 4-6, 8-10. Martinez allows a court to consider procedurally defaulted ineffective-assistance-of-counsel claims where the petitioner can show the default was due to ineffective assistance of PCR counsel. Martinez, 566 U.S. at 13. However, “[t]o overcome the default, a [petitioner] must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the [petitioner] must demonstrate that the claim has some merit.” Id. at 14. The fact that Petitioner's claims are procedurally defaulted and lack even “some merit” thus precludes them from federal habeas review.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 22) be GRANTED, Petitioner's Motion for Partial Summary Judgment (ECF No. 31) be DENIED, and the Petition be DISMISSED with prejudice.
The parties are directed to the next page for their rights to file objections to this 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 Post Office Box 835 Charleston, South Carolina 29402
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).