Watkins v. Kendall

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATION. Respondent's 9 Motion for Summary Judgment is granted and the Petition is dismissed with prejudice. It is FURTHER ORDERED that a certificate of appealability is denied. Signed by Honorable R Bryan Harwell on 4/27/2012. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Jamie Madonna Watkins,
Petitioner,
v.
Katherine Kendall, Warden Leath
Correctional,
Respondent.

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Civil Action No.: 0:11-cv-01673-RBH

ORDER

Petitioner, a state prisoner proceeding pro se, initiated this action by filing her Petition Under
28 U.S.C. § 2254 for Writ of Habeas Corpus. Respondent filed her return, along with a motion for
summary judgment.

This matter is before the Court after the issuance of the Report and

Recommendation (“R&R”) of United States Magistrate Judge Paige J. Gossett.1 In the R&R, the
Magistrate recommends that the Court grant Respondent’s motion and dismiss Petitioner’s petition as
untimely.
Factual Background and Procedural History
Petitioner was indicted in January 2004 in Lexington County on charges of murder,
first-degree burglary, and criminal conspiracy. She was represented by Michael Ray Ellisor and
pleaded guilty, on August 28, 2006, to first-degree burglary, voluntary manslaughter, and criminal
conspiracy. The circuit court sentenced her to twenty-eight years’ imprisonment for first-degree
burglary, twenty-eight years’ imprisonment for voluntary manslaughter, and five years’
imprisonment for criminal conspiracy. The circuit court ordered that all sentences run concurrently.
Petitioner did not file a direct appeal within the ten-day period provided by South Carolina law.
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In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this matter was
referred to the Magistrate for pretrial handling.

Petitioner filed an application for post-conviction relief (“PCR”) on November 27, 2006,
alleging her attorney did not inform her of her right to a direct appeal. She claimed actual innocence
and explained her guilty plea resulted from advice that she would spend the rest of her life in prison if
she proceeded to trial.
competence.

She also claimed her attorney did not properly evaluate her mental

The relief she requested, however, was a reduction of her sentence.

After an

evidentiary hearing, the PCR court dismissed her application with prejudice on December 17, 2008.
The PCR court found Petitioner failed to meet her burden of proving that she was promised a shorter
sentence, that she did not understand the consequences of her plea, and that she was not mentally
competent to plead guilty. The South Carolina Supreme Court denied certiorari on August 5, 2010,
and remittitur was issued on August 24, 2010.
On July 7, 2011, Petitioner filed a Petition Under 28 U.S. § 2254 for Writ of Habeas Corpus,
seeking “[a] re-evaluation of [her] sentence and an overturning of [her] guilty plea.” She alleged
ineffective assistance of counsel “on all levels of the proceedings.” She claimed her attorneys
“failed to produce . . . a viable strategy or defense” and never evaluated her competency to plead
guilty. Finally, she noted her petition is not barred by the one-year statute of limitation “if time is
tolled.” [Pet., Doc. # 1, at 5-13.]
Respondent filed her return and a motion for summary judgment on September 16, 2011.
[Docs. # 9 & 10.] She contended that Petitioner’s petition is barred by the statute of limitations and,
alternatively, that the petition is without merit. Petitioner, in a one-paragraph response to the motion
for summary judgment, expressed only her desire that the case not be dismissed. [Doc. # 18.]
Subsequently, the Magistrate issued an R&R, recommending that the Court grant Respondent’s

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motion and dismiss Petitioner’s petition as untimely. [R&R, Doc. # 21, at 9.] Petitioner filed timely
objections to the R&R. [Pet’r’s Obj., Doc. # 23]
Standard of Review
The Magistrate makes only a recommendation to the Court. The recommendation has no
presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo
determination of those portions of the R&R to which specific objection is made, and the Court may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate, or recommit the
matter to her with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a party
makes only "general and conclusory objections that do not direct the [C]ourt to a specific error in the
[M]agistrate's proposed findings and recommendations." Id. Moreover, in the absence of objections
to the R&R, the Court is not required to give any explanation for adopting the recommendation.
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of objections, the Court
must “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, 315 (4th Cir. 2005).
Discussion
The Magistrate recommends that the Court grant Respondent’s motion for summary judgment
and dismiss the petition as untimely. Except for an admission that she was “unaware of the deadlines
designated to file petitions,” Petitioner does not address the Magistrate’s conclusion that Petitioner’s
petition is barred by the statute of limitations. Her objection is largely a dispute of the facts
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supporting her plea and more detailed claims of ineffective assistance of counsel. As noted above,
Petitioner’s failure to object properly to the Magistrate’s recommendation frees the Court of the duty
to give an explanation for its adoption of the Magistrate’s R&R. Camby, 718 F.2d at 199. Out of an
abundance of caution, however, the Court reviews the Magistrate’s recommendation for clear error.
Ignorance of the law is not an extraordinary circumstance and does not excuse a pro se litigant
from compliance with the statute of limitations. United States v. Sosa, 364 F.3d 507, 512 (4th Cir.
2004); Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003). Petitioners in state custody “pursuant to the
judgment of a [s]tate court” must comply with a one-year statute of limitations in seeking a writ
habeas corpus. 28 U.S.C. § 2244(d)(1). The limitation period begins to “run from the latest of”:
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by [s]tate action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
[s]tate 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. However, the limitation period is tolled during the pendency of properly filed state PCR
proceedings “with respect to the pertinent judgment or claim.” Id. at § 224(d)(2); see also Taylor v.
Lee, 186 F.3d 557, 561 (4th Cir. 1999) (holding that state PCR proceedings toll the limitation period
“from initial filing [until] final disposition by the highest state court”). In support of her conclusion,
the Magistrate notes eighty-one days passed from the expiration of Petitioner’s period to file a direct
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appeal to when Petitioner filed her PCR application, which tolled the statute of limitations. After the
South Carolina Supreme Court issued remittitur, Petitioner had until June 6, 2011, the Monday after
the expiration of 284 days, to file her § 2254 petition. Petitioner, however, waited until the following
month to do so. Nowhere in her petition is there any evidence of an event or impediment that would
further toll or delay the statute of limitations. The Court, therefore, finds no clear error in the
Magistrate’s recommendation.
Certificate of Appealability
A certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that reasonable jurists would find that the court’s
assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief
on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is
debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85. In the instant matter, the court concludes that Petitioner has failed to make the
requisite showing of “the denial of a constitutional right.”
Conclusion
The Court has thoroughly analyzed the entire record, including the petition, the motion for
summary judgment, the Magistrate’s R&R, objections to the R&R, and the applicable law. For the
reasons stated above and by the Magistrate, the Court hereby overrules all of Petitioner’s objections
and adopts the Magistrate’s R&R.
IT IS THEREFORE ORDERED that Respondent’s Motion for Summary Judgment is
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GRANTED; and, therefore, that the § 2254 Petition is DISMISSED with prejudice.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED because the
Petitioner has failed to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
April 27, 2012
Florence, SC

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