Harris v. Riley et al

Filing 64

ORDER adopting 51 Report and Recommendation. It is the judgment of this Court that Respondent's 38 Motion for summary judgment is GRANTED and Petitioner's 1 habeas petition is DISMISSED as untimely. To the extent that Petitioner requests a certificate of appealability from this Court, that request is DENIED. Signed by Honorable Mary G Lewis on 1/30/15. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
FREDERICK JERMAINE HARRIS,
Petitioner,
vs.
TIM RILEY, Warden of Tyger River
Correctional Institution,
Respondent.

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§ CIVIL ACTION NO. 0:14-187-MGL
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ORDER ADOPTING THE REPORT AND RECOMMENDATION,
GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT,
AND DISMISSING PETITIONER’S HABEAS PETITION AS UNTIMELY
This case was filed as a 28 U.S.C. § 2254 action. Petitioner was proceeding pro se when he
filed this action but has subsequently obtained private counsel. The matter is before the Court for
review of the Report and Recommendation (Report) of the United States Magistrate Judge
suggesting that Respondent’s motion for summary judgment be granted and Petitioner’s habeas
petition be dismissed as untimely. The Report was made in accordance with 28 U.S.C. § 636 and
Local Civil Rule 73.02 for the District of South Carolina.
The Magistrate Judge makes only a recommendation to this 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 (1976). The Court is charged with making a de novo
determination of those portions of the Report 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 with instructions. 28 U.S.C. § 636(b)(1).
This case has somewhat of a tortured procedural history. As is relevant here, Petitioner filed
his first PCR application on September 10, 2004. The PCR court filed its order dismissing
Petitioner’s application on May 18, 2005. Because no appeal was taken from the PCR court’s
dismissal of Petitioner’s first PCR application, the decision became final on June 17, 2005. See
SCAR 203(b)(1). Petitioner filed a second PCR application on August 17, 2010, in which he argued
that counsel in his first PCR failed to file an appeal of his 2004 PCR dismissal. On December 18,
2013, the South Carolina Court of Appeals granted Petitioner’s request for a belated review of the
Order of Dismissal from Petitioner’s first PCR action, reviewed the Order, counsel’s brief and
Petitioner’s pro se filing, and denied relief. On January 3, 2014 the Court of Appeals issued the
remittititur. Petitioner then filed his § 2254 petition with this Court on January 14, 2014.
Respondent filed his motion for summary judgment on August 25, 2014. On November 17,
2014, the date that Petitioner’s response to Respondent’s motion for summary judgment was due,
counsel for Petitioner filed a document titled “Notice of Appearance” in which he stated: “Please
note the entry of appearance of J.J. Andrighetti of the firm Kehl Culbertson Andrighetti & Kornfeld,
LLC, as counsel of record for the Petitioner, Frederick Jermaine Harris. By way of this Notice, the
Petitioner also notices the Court of his opposition to the Respondent’s Motion of Summary
Judgment.”

Thereafter, on November 24, 2014, the Magistrate Judge filed her Report

recommending that Petitioner’s habeas petition be dismissed as untimely, Report 8, and noting that
“[a]lthough counsel filed a notice of appearance. . . , he did not file a memorandum in opposition to
the motion [for summary judgment] or a request for an extension of time,” Report 1 n.1.
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On November 26, 2014, counsel for Petitioner filed a motion for an extension of time to file
a response to Respondent’s motion for summary judgment. In granting the motion for an extension
of time, this Court stated that “Petitioner shall have until December 12, 2014, to file his objections
to the Report and Recommendation. Petition[er] must file specific objections as described on page
nine of the Report and Recommendation. Any arguments that Petitioner wishes to make in
opposition to Respondent’s motion for summary judgment should be set forth in his objections.”
ECF 53. On December 12, 2014, counsel for Petitioner filed a document with the Court titled
“Memorandum of Law in Opposition to Respondent’s Motion for Summary Judgment”
(Memorandum in Opposition). On that same date, he filed a motion for an extension of time to file
a supplemental memorandum in opposition to Respondent’s motion for summary judgment. On
January 16, 2015, the Court filed an order giving counsel until January 23, 2015, to file his
supplemental memorandum. As of the date of this Order, no supplemental memorandum has been
filed. Therefore, the case is ripe for review.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), effective April 24,
1996, provides that
(d)(1) [a] 1-year period of limitation shall apply to an application for
a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall 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 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
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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.
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.
28 U.S.C. § 2244(d)(1) & (2). The Supreme Court has made clear, however, “that § 2244(d) is
subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010).
But, a petitioner is entitled to equitable tolling only if he shows “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented
timely filing. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
In Petitioner’s Memorandum in Opposition, he argues that “[Petitioner’s] objection to the
Magistrate Judge’s recommendation is not based on a miscalculation of dates or numbers, but rather
is based on the fact that [Petitioner] seeks equitable tolling of his time to file.” Memorandum in
Opposition 4. To be more specific, according to Petitioner, the Court should equitably toll the statute
of limitations for the filing of his § 2254 from June 17, 2005, the date that Petitioner’s first PCR
became final, until January 3, 2014, the date that the South Carolina Court of Appeals issued its
remittititur as to Petitioner’s belated appeal of his first PCR application. Memorandum in
Opposition 5. The Court, however, is unpersuaded that equitable tolling is appropriate in this
instance.
The Seventh Circuit has correctly stated that
[n]o rule of thumb emerges from the cases on how long prisoners may
take to discover their lawyers' missteps, and we hesitate to pick a
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magic number. Compare, e.g., Granger v. Hurt, 90 Fed. Appx. 97,
100 (6th Cir.2004) (diligent prisoner may wait at least 2 months
before even inquiring into whether counsel followed instructions),
and [Wims v. United States, 225 F.3d 186, 191 (2d Cir. 2000) (5
months may be reasonable), with [Anjulo–Lopez v. United States, 541
F.3d 814, 816, 819 (8th Cir. 2008)] (3–month wait is too long), and
Montenegro v. United States, 248 F.3d 585, 588, 593 (7th Cir. 2001]
(10–month wait is too long, at least if prisoner receives up-to-date
docket sheet after 6 months). The weight of this authority suggests
that a reasonable prisoner may take at least two months–the time
Ryan needs–to suspect that counsel has dropped the ball, contact
counsel or the court, wait for a response, and verify the suspicion.
Ryan v. United States, 657 F.3d 604, 607-08 (7th Cir. 2011).
As noted above, Petitioner failed to pursue his rights from June 2005, when the decision on
his first PCR became final–until August 2010, when he filed his second PCR application, wherein
he maintained that his first PCR counsel failed to file an appeal. In other words, he waited over five
years before he did anything to pursue his rights. Thus, to suggest “(1) that [Petitioner] [had] been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” and
prevented timely filing, Pace, 544 U.S. at 418, strains the bounds of credulity. Consequently, the
Court declines Petitioner’s invitation to apply equitable tolling in this instance. As such, the Court
overrules this objection.
After a thorough review of the Report and the record in this case pursuant to the standards
set forth above, the Court overrules Petitioner’s objections, adopts the Report, and incorporates it
herein. Therefore, it is the judgment of this Court that Respondent’s motion for summary judgment
is GRANTED and Petitioner’s habeas petition is DISMISSED as untimely.
An order denying relief in a § 2254 proceeding such as this is not appealable unless a circuit
or district judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of

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appealability will issue only upon “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). A petitioner satisfies this standard by demonstrating that reasonable jurists
would find that any assessment of the constitutional claims by the district court is debatable or wrong
and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,
252 F.3d 676, 683-84 (4th Cir. 2001). The Court has reviewed the petition, the record and the
applicable case law and concludes that Petitioner has failed to make the requisite showing.
Therefore, to the extent that Petitioner requests a certificate of appealability from this Court, that
request is DENIED.
IT IS SO ORDERED.
Signed this 30th day of January, 2015, in Columbia, South Carolina.
s/ Mary G. Lewis
MARY G. LEWIS
UNITED STATES DISTRICT JUDGE

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