Hilton v. McCall
ORDER ADOPTING 30 REPORT AND RECOMMENDATION re 17 Motion for Summary Judgment filed by M McCall. Respondent's Summary Judgment Motion (ECF No. 17) is granted and the Petition is dismissed with prejudice. The court declines to issue a certificate of appealability at this time. Signed by Honorable Timothy M Cain on 8/5/2013. (abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Warden M. McCall,
C/A No. 1:12-1540-TMC
OPINION & ORDER
This matter is before the court on Petitioner’s pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
In accordance with 28 U.S.C. § 636(b) and Local Rule
73.02(B)(2), D.S.C., all pre-trial proceedings were referred to a magistrate judge.1 On July 2,
2013, Magistrate Judge Shiva V. Hodges filed a Report and Recommendation recommending
Respondent’s Summary Judgment Motion (ECF No. 17) be granted and the petition be dismissed
with prejudice.2 The magistrate judge advised the parties of the procedures and requirements for
filing objections to the Report and the serious consequences if they failed to do so. Id. at 30.
Petitioner filed objections to the Report on July 18, 2013. (ECF No. 33).
The court is obligated to conduct a de novo review of every portion of the Magistrate
The Magistrate Judge 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 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).
On February 14, 2013, Magistrate Judge Hodges issued a Report and Recommendation
recommending that the Petition be dismissed without prejudice as untimely. (ECF No. 22). On
April 14, 2013, the court declined to adopt the Report finding equitably tolling should be
applied, and recommitted the matter for further consideration by the Magistrate Judge. (ECF
No. 26). To the extent, Petitioner contends that the magistrate judge improperly addressed whether his
claims were procedurally barred (Objections at 5), this objection is without merit. In its previous order,
the court recommitted the matter solely on its determination that equitable tolling should be applied and
the action was not time barred. The court did not address whether Petitioner’s claims were procedurally
Judge’s report to which objections have been filed. Id. However, the court need not conduct a de
novo review when a party makes only “general and conclusory objections that do not direct the
court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the
Magistrate Judge’s conclusions are reviewed only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Upon review, the court finds that most of Petitioner's objections are non-specific,
unrelated to the dispositive portions of the Report and Recommendation, or merely restate his
claims. However, the court was able to glean two specific objections. First, Petitioner contends
the magistrate judge erred when she found Petitioner’s claims raised in Grounds Two and Three
were procedurally barred because Petitioner did not pursue these claims by filing a Rule 59(e)
motion to alter to amend the PCR court’s order of dismissal.
(ECF No. 33 at 2).
Petitioner contends that the magistrate judge failed to correctly apply the holding of Martinez v.
, 132 S.Ct. 1309, 1315, 182 L.Ed.2d 272 (2012). Id. at 4.
In regard to Petitioner’s first objection, in her report, the magistrate judge noted that
Petitioner did not file a Rule 59(e) motion, and therefore these claims were unavailable for further
collateral review. (ECF No. 30 at 16).3 However, even assuming Petitioner filed a Rule 59(e)
Petitioner also argues that the magistrate judge improperly applied the decision in
Marlar v. State, 653 S.E.2d 266 (S.C. 2007), which requires a PCR applicant to file a Rule 59(e)
motion to preserve issues for appeal. (ECF No. 33 at 3). Petitioner contends the magistrate judge
improperly applied Marlar retroactively. Id. In Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th
Cir. 2009), the Fourth Circuit Court of Appeals held that prior to the Marlar decision, the South
Carolina courts had not strictly enforced Rule 59(e) as a procedural bar. First, Petitioner filed his
PCR application on November 8, 2007, after the Marlar decision. While Petitioner’s PCR
application was signed and mailed earlier than that date, Petitioner is not entitled to the benefit of
the mailbox rule espoused in Houston v. Lack, 487 U.S. 266, (1988), as there is no such rule for
state filings in South Carolina. See Bryson v. Harkleroad, 2010 U.S. Dist. Lexis 32376, * 9
(W.D.N.C. April 1, 2010) (“There appears to be no corresponding ‘prison mail box rule’ for
filing MARs in state court, as there is for filing appeals in federal court.”); Doak v. Quarterman,
271 Fed. App'x. 466, 467 (5th Cir.2008) (declining to extend the prison “mail box rule” to state
motion, these issues were not properly raised in a PCR application.
To preserve such
freestanding claims, Petitioner would have had to assert them at the trial level and pursue them
on direct appeal. See Drayton v. Evatt, 430 S.E.2d 517, 520 (S.C. 1993) (holding “[i]ssues that
could have been raised at trial or on direct appeal cannot be raised in a PCR application absent a
claim of ineffective assistance of counsel”).
In regard to Petitioner’s second objection, the magistrate judge noted that the claims
raised in “Grounds Two and Three are free-standing claims of a Brady violation and prosecutorial
misconduct, and not ineffective assistance of counsel, therefore Martinez is not available to
establish cause.” (ECF No. at 16). Petitioner contends that his PCR counsel abandoned him and
his PCR appeal and the magistrate judge failed to properly apply the holding in the Martinez case.
(ECF No. 33 at 3-4).
In Martinez, the Supreme Court recognized that “[i]nadequate assistance of counsel at
initial-review collateral proceedings may establish cause for a prisoner's default of ineffective
assistance at trial.” 132 S.Ct. at 1315. This holding was specifically limited to “initial-review
collateral proceedings,” not appellate PCR proceedings. Id. at 1317. Moreover, as noted above
and by the magistrate judge, the claims raised in Grounds Two and Three are freestanding claims
and not alleged in the context of claims of ineffective assistance of counsel. Therefore, the court
agrees with the magistrate judge that the Petitioner's claims are procedurally defaulted and that
Martinez does not apply here. Therefore, the Petitioner's objections are overruled.
After a thorough review of the Report and the record in this case pursuant to the standard
set forth above, the Court finds Petitioner's objections are without merit. Respondent's Summary
post-conviction filings). Second, and more importantly, the PCR court did not file its decision in
Petitioner’s case until November 12, 2008, well after the Marlar decision. (ECF No. 16-1 at 33).
Accordingly, the Marlar decision was applicable to Petitioner’s PCR action, and failure to file a
Rule 59(e) motion was a procedural bar to raising claims on appeal.
Judgment Motion (ECF No. 17) is GRANTED and the Petition is DISMISSED with prejudice.
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). A prisoner satisfies this standard by demonstrating
that reasonable jurists would find both that his constitutional claims are debatable and that any
dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In the instant
matter, the court finds that Petitioner has failed to make "a substantial showing of the denial of a
constitutional right." Accordingly, the court declines to issue a certificate of appealability.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
August 5, 2013
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.
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