Liberte v. Warden Lieber Correctional Institution

Filing 77

ORDER RULING ON REPORT AND RECOMMENDATIONS incorporating 68 Report and Recommendations, granting 18 Motion for Summary Judgment filed by Warden Lieber Correctional Institution, declining to grant a certificate of appealability, denying petitioner 's remaining pending motions: 32 Motion for Miscellaneous Relief filed by Aubin Liberte, 57 Motion for Discovery, filed by Aubin Liberte, 62 Motion to Amend/Correct filed by Aubin Liberte, 66 Motion for Sanctions filed by Aubin Liberte, 67 Motion for Miscellaneous Relief filed by Aubin Liberte, and 75 Motion to Amend/Correct filed by Aubin Liberte. Signed by Honorable Joseph F Anderson, Jr on 9/14/2010. (jpet, )

U N I T E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA

A u b in Liberte,

) ) P e t i t io n e r , ) v. ) ) W a rd e n , Lieber Correctional ) In s titu tio n , ) ) R e sp o n d e n t. ) _________________________________ )

C /A No. 0:09-1343-JFA-PJG

ORDER

T h e pro se petitioner, Aubin Liberte, is an inmate at the South Carolina Department o f Corrections serving a term of incarceration of fifty-four years upon his state conviction f o r conspiracy to traffick and trafficking in cocaine. He has filed a petition pursuant to 28 U .S .C . § 2254 alleging that he is being held in custody in violation of the United States C o n s t it u t io n due to an unlawful arrest, improper indictment, false evidence, illegal search a n d seizure, and ineffective assistance of counsel. He also claims that the State did not have s u b je c t matter jurisdiction and that his due process rights were violated. T h e Magistrate Judge assigned to this action 1 has prepared a thorough Report and R e c o m m e n d a tio n and opines that the respondent's motion for summary judgment2 should be
The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). An order was issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying petitioner of the summary dismissal procedure and possible consequences if he failed to adequately respond to the motion for summary judgment. Petitioner responded to the motion.
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g ra n te d because the petition is untimely. The Report sets forth in detail the relevant facts and s ta n d a rd s of law on this matter, and the court incorporates such without a recitation. T h e petitioner was advised of his right to file objections to the Report and R e c o m m e n d a tio n , which was entered on the docket on July 29, 2010. Petitioner filed timely o b je c tio n s to the Report after being granted an extension within which to do so. The Magistrate Judge concurs with the respondent's contention that the petitioner's c la im is barred because it was not timely filed under the one-year statute of limitations c re a te d by the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 1 1 0 Stat. 1214 (AEDPA). In addition, the Magistrate finds no showing by the petitioner that w o u ld entitle him to equitable tolling. The AEDPA provides a one-year statute of limitations p e r io d on the filing of a § 2254 action. Subsection (d) of the statute reads: (D )(1 ) A 1-year period of limitation shall apply to an application f o r a writ of habeas corpus by a person in custody pursuant to th e judgment of a State court. The limitation period shall run f ro m the latest of­ (A ) the date on which the judgment became final by the c o n c lu s io n of direct review or the expiration of the time for s e e k in g such review; ( B ) the date on which the impediment to filing an application c re a te d by State action in violation of the Constitution or laws o f the United States is removed, if the applicant was prevented f ro m filing by such State action; (C ) The date on which the constitutional right was asserted was in itia lly recognized by the Supreme Court, if the right has been n e w ly recognized by the Supreme Court and made retroactively a p p lic a b le to cases on collateral review; or

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(D ) The date on which the factual predicate of the claim or c la im s presented could have been discovered through the e x e rc is e of due diligence. (2 ) The time during which a properly filed application for state p o s t-c o n v ic tio n or other collateral review with respect to the p e rtin e n t judgment or claim is pending shall not be counted to w a rd any period of limitation under this subsection. 2 8 U.S.C. § 2244(d)(1). T h e petitioner's conviction became final on December 30, 2003 when the South C aro lin a Court of Appeals entered its remittitur. Because petitioner did not seek certiorari re v ie w from the South Carolina Supreme Court, he is not entitled to an additional tolled time o f 90 days in which to seek certiorari review from the United States Supreme Court. See, e .g ., Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000). Accordingly, the limitations period e x p i red one year later on December 30, 2004, unless the period was at any time tolled for a p ro p e rly filed state PCR application. 28 U.S.C. § 2244(d)(2); see also Hernandez v. C a ld w e ll, 225 F.3d 435, 438­39 (4th Cir. 2000). T h e petitioner filed his first state PCR action on February 27, 2004. At that point, 59 d a ys of non-tolled time had accrued since the limitations began to run. The period was tolled d u r in g the pendency of the PCR action until June 6, 2008, when the South Carolina Court o f Appeals issued the remittitur from its order denying petitioner's writ of certiorari. This le f t 306 days of statutory time remaining, which gave petitioner until April 6, 2009 to file a tim e ly federal habeas corpus petition. The present § 2254 petition was filed May 18, 2009 3

The filing date of May 18, 2009 reflects the date the petitioner delivered the petition to prison authorities to forward to the district court. This date is stamped on the envelope accompanying the petition. Houston v. Lack, 487 U.S. 266, 270­71 (1988).

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w h ic h was more than one month (40 days) after the expiration of the one-year limitations p e rio d under § 2244(d)(1)(A). The Magistrate Judge suggests that no equitable tolling can b e applied to the petitioner. In opposing the respondent's motion for summary judgment, the petitioner argues that t h e statute of limitations is inapplicable because he has alleged a claim of fraud upon the c o u r t. The Magistrate Judge notes that the petitioner cites no federal authority for this a ss e rtio n of fraud, and that such an assertion does not by itself render the federal limitations p e rio d inapplicable. Nor can petitioner show how this allegation excuses his failure to meet th e federal filing deadline. P e titio n e r counters the motion for summary judgment arguing that his petition is tim e ly under § 2244(d)(1)(D). He claims that February 17, 2005 is the date on which the f a c tu a l predicate of his Brady violation claim could be discovered--the date when p e titio n e r's co-defendant testified at petitioner's PCR hearing that petitioner was innocent. A s the Magistrate Judge points out in her Report, none of the claims petitioner has presented in this petition allege or assert a Brady violation due to a failure to disclose exculpatory e v id e n c e relating to the co-defendant. Accordingly, petitioner cannot rely on the date of F e b r u a r y 17, 2005 as the starting point for his limitations period. The relevant dates must re la te to the claims presented in the petition. In his objections to the Report, petitioner now contends that the time limits imposed b y AEDPA under § 2244(d)(1) are not applicable because he can show that he is actually in n o c e n t of the charges under the requirements set forth in Schlup v. Delo, 513 U.S. 298,

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3 2 6 ­ 2 7 (1 9 9 5 ). Petitioner seeks to amend his petition to include an actual innocence claim. H e contends that he has raised this issue in one of his supplemental responses in this case; th a t such amendment would not prejudice the respondent; and that the Magistrate Judge f a iled to consider his actual innocence argument. T h e United States Supreme Court has held that a claim of actual innocence can be r a is e d "to avoid a procedural bar to the consideration of the merits of [the petitioner's] c o n stitu tio n a l claims." Schlup at 326-27. However, this gateway only applies to procedural d e f a u l t s and bars of claims at the state level, after a petitioner has timely filed a § 2254 p e t itio n . The Supreme Court has not yet held that a claim of actual innocence will excuse a n inmate's failure to timely file within the one-year statute of limitations set by the AEDPA. T h e petitioner cites to other circuits which have allowed equitable tolling based on a c tu a l innocence after a petitioner has diligently pursued his federal habeas claims. See S o u te r v. Jones, 395 F.3d 577­97 (6th Cir. 2005). However, there is no clear directive from e ith e r the Fourth Circuit or the Supreme Court which allows a petitioner to proceed on the m e rits of an untimely petition because of an actual innocence contention. In considering generally whether to allow equitable tolling of the one-year statute of lim ita tio n s period, the Fourth Circuit applies the "extraordinary circumstances" test which e n titles tolling if the petitioner presents (1) extraordinary circumstances; (2) beyond his c o n tro l or external to his own conduct; (3) that prevented him from filing on time. See Rouse v . Lee, 339 F.3d 238 (4th Cir. 2003) (en banc). The Fifth and Eighth Circuits have reasoned

th a t a claim of actual innocence is an insufficient circumstance to warrant equitably tolling

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th e statute of limitations without a showing that a petitioner has discovered new facts that c o u ld not have been found with reasonable diligence before the time for filing had ended. Here, petitioner contends in several of his grounds that the prosecution knowingly p re se n te d false testimony, produced a fake audiotape at his state court trial, and has refused to release the "critical piece of evidence" (the allegedly fake audiotape). Respondent c o n ten d s that these allegations were procedurally defaulted at trial or on direct appeal. T h is court cannot find extraordinary circumstances in this case that would allow the p etitio n er to evade the one-year statute of limitations rule. His objection is therefore o v e rru le d . A f t e r a careful review of the record, the applicable law, the Report and R e c o m m e n d a tio n , and the petitioner's objections thereto, the court finds the Magistrate J u d g e 's recommendation to be proper and incorporates it herein by reference. A cc o r d i n g l y, respondent's motion for summary judgment is granted and petitioner's r e m a i n i n g pending motions are denied. ap p ea lability in this matter.4 The court declines to grant a certificate of

On December 1, 2009, the Rules governing Section 2254 and 2255 cases in the United States District Courts were amended to require that the district court issue or deny a certificate of appealability when a final ruling on a habeas petition is issued. See Rule 11(a) of the Rules governing 28 U.S.C. § 2254 and 2255. The court has reviewed its order and pursuant to Rule 11(a) of the Rules Governing Section 2254 and Section 2255 cases, declines to issue a certificate of appealability as petitioner has not made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336­38 (2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong)(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

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IT IS SO ORDERED.

S ep t e m b e r 14, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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