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Thompson v. Davis

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION
Apr 30, 2019
C/A No. 8:18-cv-03361-CMC-JDA (D.S.C. Apr. 30, 2019)

Opinion

C/A No. 8:18-cv-03361-CMC-JDA

04-30-2019

Terrill Thompson, Petitioner, v. Mr. W. Davis, Warden, Respondent.


REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

This matter is before the Court on Respondent's motion for summary judgment. [Doc. 12.] Petitioner is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.

Petitioner, proceeding pro se, filed this Petition for writ of habeas corpus on December 11, 2018. [Doc. 1.] On February 4, 2019, Respondent filed a return and memorandum to the Petition and a motion for summary judgment. [Docs. 11; 12.] The next day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 13.] The Court filed a second Roseboro Order on February 22, 2019, after receiving a notice of change of address from Petitioner. [Docs. 15; 17.] On March 4, 2019, Petitioner's response in opposition was entered on the docket. [Doc. 19.]

A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on December 11, 2018. [Doc. 1-1 at 1 (envelope stamped received by prison mailroom on December 11, 2018).]

Having carefully considered the parties' submissions and the record in this case, the Court recommends the Petition be dismissed as time barred.

BACKGROUND

Petitioner is confined in the South Carolina Department of Corrections at Broad River Correctional Institution pursuant to orders of commitment of the Chester County Clerk of Court. [Docs. 1 at 1; 15 (notice of change of address to Broad River Correctional Institution).] In November 2008, Petitioner was indicted for burglary first degree and strong armed robbery. [Doc. 11-20.] On October 12, 2010, represented by Leah Moody, Petitioner pled guilty to both charges. [Doc. 11-1.] He was sentenced to concurrent terms of fifteen years' imprisonment on the burglary first degree charge and fifteen years' imprisonment on the robbery charge. [Id. at 28-29.] No direct appeal was filed.

At the time he filed the Petition, Petitioner was confined at Kirkland Correctional Institution, where the warden was Respondent Mr. W. Davis [Doc. 1 at 1], but on February 21, 2019, Petitioner's notice of change of address was filed on the docket updating his address to Broad River Correctional Institution [Doc. 15]. A prisoner's immediate custodian—the warden of the facility where the prisoner is being held—is the proper respondent in a habeas corpus action because the immediate custodian has the power to produce the prisoner's body before the habeas court. Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004). If a prisoner properly files a habeas petition naming the prison warden as the respondent and is relocated to another prison before the court decides whether or not to grant the petition, the court "retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner's release." Id. at 441 (discussing Ex parte Endo, 323 U.S. 283 (1944)). Thus, this Court retains jurisdiction over the Petition following Petitioner's transfer to Broad River Correctional Institution.

PCR Proceedings

First PCR Application

Petitioner, proceeding pro se, filed an application for post-conviction relief ("PCR") on February 16, 2011. [Doc. 11-2.] The PCR application alleged Petitioner was being held in custody unlawfully based on the following grounds, quoted substantially verbatim:

Ground One: Lack of knowledge of plea. The prosecution failed to inform Defendant and his counsel that the victim claimed that she was choked by the Defendant and slammed on the floor. She went to the hospital but the prosecution kept the hospital records. A plea cannot be considered knowing and voluntary if a Defendant "lacks knowledge of material evidence in the prosecution's possession." Gibson v. State, 514 S.E.2d 320, 324 (S.C. 1999); see also S.C. R. Crim. P. 5.

Ground Two: Leah B. Moody failed to get medical records of the victim, which constitutes ineffective assistance of counsel.

Ground Three: Leah B. Moody never gave me an understanding of what I was pleading to.

Ground Four: I requested a jury trial but Ms. Moody refused to do so.

Ground Five: Leah B. Moody never investigated my charges.

Ground Six: My plea was involuntary.
[Id. at 3.] The State filed a return, dated July 6, 2011. [Doc. 11-3.]

A hearing was held on July 30, 2012, and Petitioner was represented at the hearing by Nicole L. Singletary. [See Doc. 11-4 at 1.] At the hearing, Petitioner and Singletary informed the court that Petitioner wished to withdraw his PCR application with prejudice. [See id.] On October 1, 2012, the PCR court filed an order finding the withdrawal to be knowing, intelligent, and voluntary, and dismissing the PCR application with prejudice. [Id. at 2.] Petitioner did not appeal.

Second PCR Application

Petitioner, proceeding pro se, filed a second PCR application on August 11, 2014. [Doc. 11-5.] The PCR application alleged Petitioner was being held in custody unlawfully based on the following ground, quoted substantially verbatim:

The circuit court didn't have subject matter jurisdiction because the Defendant Eligha Terrill Thompson alleges that failure to conduct a preliminary hearing, properly demanded, deprives the Court of General Sessions of jurisdiction to indict or try the Defendant. Also the Defendant Eligha Terrill Thompson claims that the reason why he didn't raise this ground in his first PCR was because Defendant didn't have law knowledge of a preliminary hearing at that time when he filed his first PCR. Also Defendant discovered as he was researching the law that his indictments were illegal due to the fact that they failed to have a preliminary hearing. Also the Defendant claims that he didn't go to law school, therefore he didn't have full knowledge of the law when he filed his first PCR. It is common knowledge to the profession that often persons charged with a crime and denied a preliminary hearing were deprived of the right to know the exact nature of the charge against them, and this denied them the opportunity to fully prepare for their defense.
[Id. at 6.] The State filed a return and motion to dismiss, dated November 21, 2014. [Doc. 11-6.] In the motion to dismiss, the State argued that Petitioner's second PCR application should be summarily dismissed as untimely and successive. [Id.]

On December 3, 2014, the PCR court filed a conditional order of dismissal. [Doc. 11-7.] In the conditional order, the court expressed its intent to summarily dismiss the matter as successive and untimely but granted Petitioner twenty days to show why the order should not become final. [Id.] Petitioner responded to the conditional order on December 8, 2014. [Doc. 11-8.] However, on November 4, 2015, the PCR court filed a final order, denying and dismissing with prejudice the application for the reasons set forth in the conditional order of dismissal. [Doc. 11-9.] Petitioner did not appeal.

Third PCR Application

Petitioner, proceeding pro se, filed a third PCR application on June 25, 2015. [Doc. 11-10.] The PCR application alleged Petitioner was being held in custody unlawfully based on newly discovered evidence. [Id. at 4-5.] Petitioner alleged that he wrote to the South Carolina Court Administration, requesting the Chester County General Sessions Court's calendar from the November 2008 term. [Id.] He asserted that he received a calendar in response that revealed there was no General Sessions Court in Chester on November 11, 2008, because that was Veterans Day, a federal holiday. [Id.] Accordingly, Petitioner contended that both of his indictments were illegal and that if he had known they were illegal, he would not have pleaded guilty. [Id.] Finally, Petitioner alleged that his trial counsel was ineffective because she knew that his indictments were illegal. [Id.] The State filed a return and motion to dismiss, dated February 9, 2016. [Doc. 11-11.] The State also filed a motion to restrict future filings. [Doc. 11-12.]

On February 22, 2016, the PCR court filed a conditional order of dismissal and an order restricting future filings. [Docs. 11-13; 11-14.] On September 9, 2018, the PCR court filed a final order, denying and dismissing with prejudice the application. [Doc. 11-15.]

Fourth PCR Application

Petitioner, proceeding pro se, filed a fourth PCR application on September 20, 2018. [Doc. 11-16.] The PCR application alleged Petitioner was being held in custody unlawfully because he was held before a court with fraudulent indictments because the date on the indictments was the Veterans Day holiday and that subject matter jurisdiction may be raised at any time. [Id. at 3-4.] The State filed a return and motion to dismiss, dated December 10, 2018. [Doc. 11-18.]

On September 25, 2018, Petitioner filed a petition for writ of mandamus for subject matter jurisdiction. [Doc. 11-17.]

On December 18, 2018, the PCR court filed an order dismissing the application with prejudice and finding the Fourth PCR application "was filed in blatant disregard to the Court's previous order restricting such filings." [Doc. 11-19.]

Petition for Writ of Habeas Corpus

Petitioner filed this Petition for writ of habeas corpus on December 11, 2018. [Doc. 1.] Petitioner raises the following ground for relief, quoted substantially verbatim, in his Petition pursuant to 28 U.S.C. § 2254:

GROUND ONE: False Imprisonment

Supporting facts: On the first degree burglary and strong arm robbery arrest warrants do not have a judge signature on them which the affidavits have a judge signature but the arrest warrants don't which violates the Federal 14th Amendment of the Constitution of due process of law.
[Doc. 1 at 5.] As stated, on February 4, 2019, Respondent filed a motion for summary judgment. [Doc. 12.] Petitioner's response in opposition was entered on the docket on March 4, 2019. [Doc. 19.] Accordingly, the motion for summary judgment is ripe for review.

APPLICABLE LAW

Liberal Construction of Pro Se Petition

Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:

The court shall grant summary judgment 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). A fact is "material" if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. "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." Id. Further, Rule 56 provides in pertinent part:

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.

Habeas Corpus

Generally

Because Petitioner filed the Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("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 in the State court proceeding.
28 U.S.C. § 2254(d). "[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 v. Taylor, 529 U.S. 362, 411 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision," and "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington v. Richter, 562 U.S. 86, 101-02 (2011). 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).

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 bypass operate 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 the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.

Exhaustion

Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:

(b) (1) 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 unless it appears that—

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B) (I) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.

(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
28 U.S.C. § 2254. The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. Id. § 2254(b)(1)(A). "To satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011). Thus, a federal 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 for relief be stated in the direct appeal or PCR application. S.C. App. Ct. R. 203; 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 required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment. S.C. R. Civ. P. 59(e). Failure to do so will result in the application of a procedural bar to that claim by the Supreme Court of South Carolina. Marlar v. State, 653 S.E.2d 266 (S.C. 2007). Further, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. For direct appeal, a notice of appeal must be filed and served on all respondents within ten days after the sentence is imposed or after receiving written notice of entry of the order or judgment. S.C. App. Ct. R. 203(b)(2), (d)(1)(B). 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 Bostick v. Stevenson, 589 F.3d 160 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007, decision in Marlar, South Carolina courts had not uniformly and strictly enforced the failure to file a motion pursuant to Rule 59(e) as a procedural bar. 589 F.3d at 162-65. Accordingly, for matters in which there was a PCR ruling prior to November 5, 2007, the Court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.

If any avenue of state relief is still available, the petitioner must proceed through the state courts before requesting a writ of habeas corpus in the federal courts. Richardson v. Turner, 716 F.2d 1059, 1062 (4th Cir. 1983); Patterson v. Leeke, 556 F.2d 1168 (4th Cir. 1977). Therefore, in a federal petition for habeas relief, a petitioner may present only those issues that were presented to the Supreme Court of South Carolina through direct appeal or through an appeal from the denial of a PCR application, regardless of whether the Supreme Court actually reached the merits of the claim.

Procedural Bypass

Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner seeks habeas corpus relief based on an issue he failed to raise at the appropriate time in state court, removing any further means of bringing that issue before the state courts. In such a situation, the petitioner has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. See Smith v. Murray, 477 U.S. 527, 533 (1986). The United States Supreme Court has stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See id. Bypass can occur at any level of the state proceedings if a state has procedural rules that bar its courts from considering claims not raised in a timely fashion. Id.

The Supreme Court of South Carolina will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. See S.C. Code Ann. § 17-27-90; Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). 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. S.C. App. Ct. R. 203(d)(3), 243. 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. See Reed v. Ross, 468 U.S. 1, 11 (1984); see also Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995). As the United States Supreme Court explained:

. . . [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, 468 U.S. at 10-11.

However, if a federal habeas petitioner can show both (1) "'cause' for noncompliance with the state rule" and (2) "'actual prejudice resulting from the alleged constitutional violation[,]'" the federal court may consider the claim. Smith, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). 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. Murray v. Carrier, 477 U.S. 478, 496 (1986). Further, if the petitioner does not raise cause and prejudice, the court need not consider the defaulted claim. See Kornahrens, 66 F.3d at 1363.

If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Absent a showing of cause and actual prejudice, a federal court is barred from considering the claim. Wainwright, 433 U.S. at 87. In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman, 501 U.S. at 735 n.1; Teague, 489 U.S. at 297-98; George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).

Cause and Actual Prejudice

Because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the Supreme Court of South Carolina in limited circumstances—where 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 where a "fundamental miscarriage of justice" has occurred, Carrier, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim, where the novelty of the constitutional claim is such that its legal basis is not reasonably available to the petitioner's counsel. Id. at 487-89; Reed, 468 U.S. at 16. 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 to excuse a default. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. Engle v. Isaac, 456 U.S. 107, 134-35 (1982).

Statute of Limitations

Under the AEDPA, petitioners have one year to file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The limitations period runs from the latest of four dates:

(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.
Id. § 2244(d)(1)(A)-(D). 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).

An application for post-conviction or other collateral review is not properly filed if the application is untimely under state law. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a post conviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)." (alteration in original)). In Pace, the United States Supreme Court held that time limits on filing applications for post-conviction or collateral review are filing conditions, no matter the form of the time limit. Id. at 417. Therefore, if an application for post-conviction or collateral review is barred by a state statute of limitations, statutory tolling under § 2244(d)(2) does not apply because the application was not properly filed.

The Supreme Court has recognized that the limitations period may be equitably tolled if the petitioner shows (1) he has been diligently pursuing his rights and (2) some extraordinary circumstance stood in his way, preventing him from timely filing his habeas petition. Holland v. Florida, 560 U.S. 631, 648 (2010) (quoting Pace, 544 U.S. at 418). Therefore, "specific circumstances . . . could warrant special treatment in an appropriate case" such that the limitations period is not strictly applied. Id. at 650.

DISCUSSION

Respondent first argues the Petition is time-barred. [Doc. 11 at 7-11.] Upon review, the Court agrees that the Petition is untimely, that Petitioner is not entitled to equitable tolling, and that Respondent is entitled to summary judgment.

Expiration of Limitations Period

Petitioner did not file a direct appeal following his sentence entered on October 12, 2010. Therefore, his state court judgment became final upon the expiration of the ten-day period in which he could have filed a direct appeal, and the statute of limitations for Petitioner's § 2254 Petition began to run on October 22, 2010. See 28 U.S.C. § 2244(d)(1)(A); Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (holding that a judgment becomes final for purposes of § 2244(d)(1) "when the time for pursuing direct review in [the United States Supreme] Court, or in state court, expires"); Rule 203(b)(2), SCACR.

Petitioner filed his first PCR application on February 16, 2011 [Doc. 11-2], such that 117 days of the one-year limitations period had expired before Petitioner filed his first PCR application. The one-year period in which to file a federal habeas petition is tolled during the pendency of a PCR application or other collateral relief properly filed in state court, 28 U.S.C. § 2244(d)(2), and Respondent concedes the statute of limitations was tolled during the period the PCR application was pending—from February 16, 2011, until October 1, 2012, when the PCR court dismissed the PCR application with prejudice [Doc. 11-4]. Therefore, the one-year limitations period began to run again on October 1, 2012, and expired 248 days later on June 6, 2013.

Petitioner filed his second PCR application on August 11, 2014 [Doc. 11-5]; his third PCR application on June 25, 2015 [Doc. 11-10]; and his fourth PCR application on September 20, 2018 [Doc. 11-16]—all well after the AEDPA limitations period expired. Therefore, because Petitioner's second, third, and fourth PCR applications were filed outside the AEDPA limitations period and the South Carolina courts determined these applications were not properly filed, these PCR applications did not additionally toll the one-year limitations period. Further, to the extent the South Carolina courts would consider Petitioner's petition for mandamus as a separate PCR application, because it was filed outside the AEDPA limitations period, it would not toll the one-year limitations period. As a result, the Petition—filed on December 11, 2018, more than five years after the expiration of the limitations period—is time barred.

Equitable Tolling

As the United States Supreme Court has recognized:

Under our system of representative litigation, "each party is deemed bound by the acts of his lawyer-agent and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.'" Link v. Wabash R. Co., 370 U.S. 626, 634, 82 S. Ct. 1386, 1390, 8 L. Ed.2d 734 (1962) (quoting Smith v. Ayer, 101 U.S. 320, 326, 25 L. Ed. 955 (1880)). . . . Federal courts have typically extended equitable relief only sparingly. We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S. Ct. 1723, 1725, 80 L. Ed.2d 196 (1984).
Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 92, 96 (1990) (footnotes omitted). The Fourth Circuit Court of Appeals has underscored the very limited circumstances in cases subject to the AEDPA where equitable tolling will be permitted, holding a habeas petitioner "is only entitled to equitable tolling if he presents (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) (en banc). Thus, rarely will circumstances warrant equitable tolling of the AEDPA limitations period:
[A]ny invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes. To apply equity generously would loose the rule of law to whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation. We believe, therefore, that any resort to equity must be reserved for 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). The Supreme Court has suggested that equitable tolling is justified to relieve the operation of a limitations bar due to egregious unprofessional attorney misconduct. See Holland, 560 U.S. at 651 (examining federal appellate decisions allowing equitable tolling when an attorney has abandoned a client, changed representation at the last minute, failed to conduct essential services of representation like communicating with the client and performing basic legal research, and denied the client access to files and mislead the client). Further, the petitioner must also demonstrate he has been diligently pursuing his rights. Id. at 649.

Other courts of appeals have similarly expressed that equitable tolling of the AEDPA statute of limitations is to be employed sparingly. See, e.g., Merritt v. Blaine, 326 F.3d 157, 169 (3d Cir. 2003) (applying the general rule that "'attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the "extraordinary" circumstances required for equitable tolling'" (citation omitted)); Beery v. Ault, 312 F.3d 948, 951 (8th Cir. 2002) ("Ineffective assistance of counsel generally does not warrant equitable tolling."); Fierro v. Cockrell, 294 F.3d 674, 683 (5th Cir. 2002) ("[C]ounsel's erroneous interpretation of the statute of limitations provision cannot, by itself, excuse the failure to file [the petitioner's] habeas petition in the district court within the one-year limitations period.") (alterations added); Sandvik v. United States, 177 F.3d 1269, 1272 (11th Cir. 1999) (refusing to apply equitable tolling where late filing was caused by attorney's use of ordinary mail to send petition from Atlanta to Miami less than a week before it was due); see also Rouse, 339 F.3d at 246 ("Principles of equitable tolling do not extend to garden variety claims of excusable neglect." (citation omitted)). --------

Here, Petitioner asserts he is entitled to equitable tolling because of his mental health and further asserts that he has been diligently pursuing his rights by filing PCR applications. [Doc. 19.] However, ?[a]s a general matter, the federal courts will apply equitable tolling because of a petitioner's mental condition only in cases of profound mental incapacity." United States v. Sosa, 364 F.3d 507, 513 (4th Cir. 2004). "[P]roof of an existing mental illness, or claims that a petitioner is taking psychiatric medication or is under psychiatric care will not automatically warrant equitable tolling." Robison v. Hinkle, 610 F. Supp. 2d 533, 539 (E.D. Va. 2009); see also McSwain v. Davis, 287 F. App'x 450, 456 (6th Cir. 2008) ("[M]ental incompetence is not a per se reason to toll a statute of limitations."). In addition to demonstrating that a petitioner is incapacitated by mental illness or the side effects of psychiatric medications, "[a] petitioner must also allege facts sufficient to demonstrate the existence of 'a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing.'" Robison, 610 F. Supp. 2d at 539-40 (quoting Rios v. Mazzuca, 78 F. App'x 742, 743 (2d Cir. 2003)).

In this case, Petitioner has not demonstrated that he was incapacitated due to a mental illness or that his mental health caused his filing to be late. To the contrary, Petitioner has had no problem filing documents throughout the state PCR process, as he has filed four pro se PCR applications, at least one response to a conditional order of dismissal, and a petition for writ of mandamus in the South Carolina courts over the past eight years. Accordingly, the Court is unable to find the limitations period should be tolled due to Petitioner's alleged mental illnesses.

CONCLUSION AND RECOMMENDATION

Wherefore, based upon the foregoing, the Court recommends that Respondent's motion for summary judgment [Doc. 12] be GRANTED and the Petition [Doc. 1] be DENIED.

IT IS SO RECOMMENDED.

s/ Jacquelyn D. Austin

United States Magistrate Judge April 30, 2019
Greenville, South Carolina


Summaries of

Thompson v. Davis

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION
Apr 30, 2019
C/A No. 8:18-cv-03361-CMC-JDA (D.S.C. Apr. 30, 2019)
Case details for

Thompson v. Davis

Case Details

Full title:Terrill Thompson, Petitioner, v. Mr. W. Davis, Warden, Respondent.

Court:UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION

Date published: Apr 30, 2019

Citations

C/A No. 8:18-cv-03361-CMC-JDA (D.S.C. Apr. 30, 2019)