Gilree v. Reynolds

Filing 21

ORDER directing respondent to supplement the 15 Motion for Summary Judgment within twenty-one (21) days from the date of this order. Petitioner may have twenty-one (21) days from the date of respondent's supplement to respond to any additional arguments raised by the respondent. Signed by Magistrate Judge Paige J Gossett on 3/2/2015. (gmil)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Mayron R. Gilree,

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Petitioner,
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vs.
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Ceilia Reynolds,
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Respondent.
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_____________________________________ )

C/A No. 0:14-3686-RMG-PJG

ORDER

The petitioner, Mayron R. Gilree, a self-represented state prisoner, filed this petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 8, 2014, the respondent filed a
motion for summary judgment. (ECF No. 15.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), the court advised the petitioner of the summary judgment and dismissal procedures and
the possible consequences if he failed to respond adequately to the respondent’s motion. (ECF No.
17.) Gilree filed a response in opposition. (ECF No. 19.)
Respondent’s arguments in support of her motion for summary judgment are largely based
on the apparently mistaken premise that a final order has been issued in Gilree’s second PCR action
(Gilree v. State of South Carolina, 13-CP-42-2072, ECF No. 16-7), which was filed on May 7, 2013.
However, a review of the documents submitted by the respondent do not support that position. The
respondents have submitted and cite a proposed conditional order of dismissal (ECF No. 16-10), a
signed conditional order of dismissal (ECF No. 16-12), Gilree’s objections to the conditional order
of dismissal (ECF No. 16-11), and an order of merger, which consolidated Gilree’s second and third
PCR applications and directed that Gilree’s third PCR application be considered as an amendment
to his second PCR application (ECF No. 16-13). However, the respondent produced no final order
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of dismissal with regard to the second PCR application. Further, review of the Spartanburg County
Seventh Judicial Circuit Public Index shows that Gilree’s first and third PCR actions have been
closed; however, his second PCR action has no disposition date and appears to remain pending. See
http://publicindex.sccourts.org/Spartanburg/PublicIndex/PISearch.aspx (following validation, enter
last name “Gilree”, first name “M”; Action Type “Post Conviction Relief” and Search) (last visited
March 2, 2015).
Therefore, the court directs the respondent within twenty-one days of the date of this order
to address the status of Gilree’s second PCR action and supplement the record if necessary, and if
the second PCR action is still pending with no final order, address how that fact may change the
respondent’s position on the timeliness of Gilree’s Petition under § 2244(d), her procedural bar
analysis, and the merits of Gilree’s claims. Further, Gilree may have twenty-one days from the date
of the respondent’s supplement to respond to any additional arguments raised by the respondent, if
he so desires.

____________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
March 2, 2015
Columbia, South Carolina

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