Beatty v. Rawski

Filing 43

ORDER denying 36 MOTION to Alter Judgment. Signed by Honorable Mary G Lewis on 7/12/2015. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
GENA BEATTY,
Petitioner,
vs.
WARDEN ANGELIA RAWSKI,
Respondent.

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§ CIVIL ACTION NO. 1:13-3045-MGL-SVH
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ORDER DENYING RESPONDENT’S RULE 59(E) MOTION
I.

INTRODUCTION
Petitioner filed this case as a 28 U.S.C. § 2254 action. Pending before the Court is

Respondent’s Motion to Alter or Amend the Court’s March 31, 2015, Order under Fed. R Civ. P.
59(e), which held that Petitioner’s petition was timely filed, but that her ineffective assistance of
plea counsel claims had no merit. Respondent moves the Court to alter or amend the portion of the
Order holding that Petitioner’s petition was timely filed. Having carefully considered Respondent’s
motion, Petitioner’s response, the record, and the applicable law, it is the judgment of this Court that
Respondent’s motion will be denied.

II.

PROCEDURAL HISTORY
As is relevant for the disposition of this motion, Petitioner filed her petition for post-

conviction relief (PCR) on August 19, 2005. On September 14, 2009, the PCR court filed its Order
of Dismissal. Petitioner filed a motion under Rule 59(e) of the South Carolina Rules of Civil
Procedure to alter or amend the PCR Court’s Order on September 25, 2009, which the PCR court
denied on October 26, 2009.

Petitioner appealed the PCR court’s order. On July 20, 2012, the South Carolina Court of
Appeals denied Petitioner’s petition, and then on September 21, 2012, it denied her petition for
rehearing and rehearing en banc. The remittitur was issued on November 8, 2012.
On November 7, 2013, Petitioner filed her § 2254 petition with this Court, in which she
raised four grounds of relief for alleged ineffective assistance of her plea counsel. Respondent filed
his motion for summary judgment on April 4, 2014, arguing, among other things, that Petitioner had
filed her petition after the statute of limitations had expired. Petitioner filed her response to the
motion on July 21, 2014.
On January 29, 2015, the Magistrate Judge filed her Report and Recommendation (Report)
agreeing with Respondent that Petitioner’s petition was untimely; but, even if the petition was
timely, it was without merit. Petitioner filed her objections to the Report on March 16, 2015.
On March 31, 2015, this Court issued an Order holding that Petitioner filed her petition
within the applicable statute of limitations, but that her ineffectiveness of assistance of plea counsel
claims were without merit. Respondent filed his Rule 59(e) motion on April 15, 2015, and Petitioner
filed her response on May 4, 2015. Respondent’s motion is now ripe for review.

III.

STANDARD OF REVIEW
Rule 59(e) of the Federal Rules of Civil Procedure “provides that a court may alter or amend

the judgment if the movant shows either (1) an intervening change in the controlling law, (2) new
evidence that was not available at trial, or (3) that there has been a clear error of law or a manifest
injustice.” Robinson v. Wix Filtration Corp, LLC, 599 F.3d 403, 407 (4th Cir. 2010). The Fourth
Circuit “reviews the denial of a Rule 59(e) motion under the deferential abuse of discretion
standard.” Id.

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IV.

CONTENTIONS OF THE PARTIES
In his Rule 59(e) motion Respondent argues that, in light of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA) one year statute of limitations and the Supreme Court’s
holding in Gonzalez v. Thaler, 132 S. Ct. 641 (2012), the Court erred in holding that Petitioner’s §
2254 petition was timely. Respondent’s Motion 1. He also states that “[t]he District Court
concluded that the statute of limitations under 28 U.S.C. Section 2244(d) was tolled until the South
Carolina Court of Appeals issued its remittitur on November 7, 2015.2 However, the decision of the
Court of Appeals was final when the Court of Appeals denied the Petition for Rehearing o[n]
September 21, 2015.”3 Id. Stated differently, according to Respondent, “the District Court erred
in rejecting the Magistrate Judge’s recommendation that the date of the denial of the petition for
rehearing rather than the remittitur letter date was the operative date for the running of the statute
of limitations.” Id. at 2.
In response, Petitioner avows that the Court’s interpretation of Gonzalez is correct.
Petitioner’s Petitioner’s Response 1. But, in case the Court should decide that it erred in its initial
decision, Petitioner avers that the doctrine of equitable tolling should apply. Id at 2-4. Further, if
the Court is inclined to adopt Respondent’s interpretation of Gonzalez and reject Petitioner’s request
for equitable tolling, then Petitioner asks that the Court to grant to Petitioner a Certificate of
Appealability so that her timeliness argument can be considered further by the Fourth Circuit. Id.
at 4.

2

According to the record in this case, the remittitur was issued on November 8, 2012, not
November 7, 2015.
3

The South Carolina Court of Appeals denied Petitioner’s petition for rehearing and
rehearing en banc on September 21, 2012, not September 21, 2015.
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V.

DISCUSSION
The law in regards to the whether Petitioner timely filed her § 2254 petition is governed by

AEDPA, which states, in relevant part:
(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 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 postconviction 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).
There is no dispute that the answer to whether Petitioner’s petition was timely filed is
controlled by § 2244(d)(2), which “refers exclusively to State post-conviction or other state
collateral review,” Lawrence v. Florida, 549 U.S. 327, 333 (2007) (“Indeed, we [have] noted that
the Courts of Appeals have uniformly interpreted direct review in § 2244(d)(1)(A) to encompass
review of a state conviction by this Court. By contrast, § 2244(d)(2) refers exclusively to State
post-conviction or other state collateral review,

language not easily interpreted to include

participation by a federal court.”) (internal citation omitted) (internal quotation marks omitted)
(internal alteration omitted).
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Respondent maintains that the Court has misread Gonzalez. The Court is unpersuaded.
First, in the second paragraph of Gonzalez, the Supreme Court opines that § 2244(d)(1)(A)
“establishes a 1–year limitations period for state prisoners to file federal habeas petitions, running
from ‘the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.’ We hold that, for a state prisoner who does not seek
review in a State’s highest court, the judgment becomes ‘final’ on the date that the time for seeking
such review expires.” Gonzalez, 132 S. Ct. at 646 (quoting § 2244(d)(1)(A)). The careful reader
will note that this passage is concerned with when the judgment in a direct appeal becomes final,
not when the judgment in a post conviction action becomes final. There is no mention whatsoever
of the tolling provision applicable when a prisoner seeks “State post-conviction or other collateral
review[,]” as provided by § 2244(d)(2).
Second, the Supreme Court states in Gonzalez that “[t]his case concerns . . . ‘the date on
which the judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review.’ § 2244(d)(1)(A). The question before us is when the judgment becomes
‘final’ if a petitioner does not appeal to a State’s highest court.” Id. at 652-533. Again, there is no
mention of collateral review, only direct review.
And third, in the only direct reference that Gonzalez makes to § 2244(d)(2), it states that
“Gonzalez also argues that Lawrence . . . supports his focus on the state court’s issuance of the
mandate because it referred to a mandate in determining when state postconviction proceedings were
no longer pending. Lawrence, however, is inapposite. The case involved a different provision, 28
U.S.C. § 2244(d)(2), which by its terms refers to ‘State’ procedures.” Gonzalez, 132 S. Ct. at 654
n.10. Once again, the Gonzalez Court emphasizes that its opinion concerns direct review (§
2244(d)(1)(A), and not collateral review (§ 2244(d)(2)).
Thus, for these reasons, the Court rejects Respondent’s argument that Gonzalez has any
bearing on the outcome of this case.
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Respondent also inexplicably asserts that the Court erred in holding that the statute of
limitations was tolled under § 2244(d)(2) until the South Carolina Court of Appeals issued its
remittitur. Motion 1. The Court held no such thing. Respondent has somehow misapprehended the
Court’s decision.
As noted above, § 2244(d)(2) states that “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.” Id. “The
Fourth Circuit has construed a state post-conviction proceeding to include all state-court proceedings
from initial filing in the trial court to final disposition by the highest state court.” Beatty v. Rawski,
Civil Action No. 1:13–3045–MGL–SVH, 2015 WL 1518083 at *3 (D.S.C. March 31, 2015)
(quoting Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000)) (citations omitted) (internal
quotation marks omitted) (alteration omitted).
In South Carolina, “ the final disposition of an appeal does not occur until after the remittitur
is filed in the circuit court[.]” Id. at *4 See Harleysville Mut. Ins. Co. v. State, 401 S.C. 15, 23 n.2,
736 S.E.2d 651, 655 n. 2 (2012) (“An opinion of an appellate court is not final until the remittitur
is filed in the lower court”); Brackenbrook North Charleston, LP v. Cnty. of Charleston, 366 S.C.
503, 508, 623 S.E.2d 91, 93 (2005) (“Where there has been an appeal, ‘final disposition of the case’
occurs when the remittitur is filed in the circuit court.”) (quoting McDowell v. S.C. Dep’t of Soc.
Serv., 300 S.C. 24, 26, 386 S.E.2d 280, 282 (1989)); Christy v. Christy, 317 S.C. 145, 151, 452
S.E.2d 1, 4 (1994) (“The final disposition of a case occurs when the remittitur is returned by the
clerk of the appellate court and filed in the lower court. Until that time, the case is pending on
appeal.”) (citation omitted)).
Hence, the final disposition of Petitioner’s PCR did not occur until the remittitur was filed
in the state circuit court. “Until that time, the case [was still] pending on appeal.” Id. Here, the

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remittitur was not filed until on or after November 8, 2012, the date that the remittitur was issued.
It follows then that Petitioner’s “properly filed application for State post-conviction or other [State]
collateral review with respect to the pertinent judgment or claim,” § 2244(d) (2), was still pending
on or after November 8, 2012, when the remittitur was filed in the state circuit court. Inasmuch as
Petitioner filed her § 2254 action on November 7, 2013, her habeas petition was not time barred by
the AEDPA one-year statute of limitation.
In light of the foregoing discussion, the Court need not address Petitioner’s arguments.
Although neither argued in Respondent’s Rule 59(e) motion nor discussed in the Report, to
the extent that Respondent wishes to rely on the language in Crawley v. Catoe, 257 F.3d 395 (4th
Cir. 2001) for the proposition that a petition is no longer pending after “the South Carolina Supreme
Court denie[s] [a petitioner’s] request for rehearing[,]” id. at 398, such reliance is misplaced.
Crawley indeed states that “[the petitioner’s] application for state post-conviction relief was
continuously pending before the South Carolina courts from before the April 24, 1996, effective date
of the AEDPA until January 8, 1998, when the South Carolina Supreme Court denied [the
petitioner’s] request for rehearing. The parties are in agreement that the one-year limitations period
was tolled during this time period.”4 Id.

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In the Court’s March 31, 2015, Opinion, it stated that the Lawrence Court “implicitly
[found] that the final disposition of a Florida appeal occurs when the mandate issues, based on
the Court’s statement that ‘the parties agree that AEDPA’s limitations period was tolled from the
filing of [the petitioner’s] petition for state postconviction relief until the Florida Supreme Court
issued its mandate affirming the denial of that petition.’” Beatty, 2015 1518083 at *3 (quoting
Lawrence, 549 U.S. at 331). Later in the Lawrence opinion, however, it becomes clear that the
Lawrence Court explicitly agreed that the issuance of the mandate signaled the final disposition
of collateral review in Florida. See Lawrence, 549 U.S. at 332 (“After the State’s highest court
has issued its mandate or denied review, no other state avenues for relief remain open. And an
application for state postconviction review no longer exists.”).
Further, the Gonzalez Court interpreted the Lawrence opinion as holding that the
issuance of a mandate marks the final disposition of a post conviction proceeding. See Gonzalez,
132 S. Ct. at 654 n.10. (“Gonzalez also argues that Lawrence . . . supports his focus on the state
court’s issuance of the mandate because it referred to a mandate in determining when state
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Yet, the issue in Crawley was not the same as the one before this Court. In Crawley, the
question before the Court was whether the statute limitations was tolled under § 2244(d)(2) “for the
period during which her petition was pending in the United States Supreme Court for writ of
certiorari to review the South Carolina Supreme Court’s denial of her state habeas corpus
application.” Id. at 396. The Fourth Circuit held that it was not. Id. The question here, however,
is when a state habeas petition is no longer pending in state court. Those are two distinctly different
issues.
“[N]ot every aspect of each opinion has precedential force.” Getty Petroleum Corp. v.
Bartco Petroleum Corp., 858 F.2d 103, 113 (2d Cir. 1988). As the Supreme Court held in Brecht
v. Abrahamson, 507 U.S. 619 (1993), “since we have never squarely addressed the issue, and have
at most assumed the applicability of [it] on habeas, we are free to address the issue on the merits.”
Id. at 631. “Questions which merely lurk in the record, neither brought to the attention of the court
nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”
Webster v. Fall, 266 U.S. 507, 511 (1925). And, that is exactly the situation that the Court is faced
with here.
The question as to when a habeas petition was no longer pending in state court was not at
issue in Crawley. As already noted, the parties had no disagreement on the matter. Instead, the
Fourth Circuit accepted the parties agreement that “[the petitioner’s] application for state postconviction relief was continuously pending before the South Carolina courts from before the April
24, 1996, effective date of the AEDPA until January 8, 1998, when the South Carolina Supreme
Court denied [the petitioner’s] request for rehearing[,]” Crawley, 257 F.3d at 398, without any
analysis whatsoever. Stated differently, the Fourth Circuit “never squarely addressed the issue,”
postconviction proceedings were no longer pending. Lawrence, however, is inapposite. The
case involved a different provision, 28 U.S.C. § 2244(d)(2), which by its terms refers to ‘State’
procedures.”).
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Brecht, 507 U.S. at 631. The issue that the Court is confronted with here was “neither brought to
the attention of the [Fourth Circuit] nor ruled upon[.]” Webster, 266 U.S. at 511.
The Court notes that, according to Westlaw, Crawley has been cited just twice in other
opinions since it was published in 2001: Abela v. Martin, 348 F.3d 164, 172-73 (6th Cir. 2003)
(holding, contrary to Crawley, that “the statute of limitations is tolled from the filing of an
application for state post-conviction or other collateral relief until the conclusion of the time for
seeking Supreme Court review of the state’s final judgment on that application independent of
whether the petitioner actually petitions the Supreme Court to review the case.”) (overruled by
Lawrence, 549 U.S. at 334); Bell v. True, 356 F. Supp 2d 613, 615 (W.D. Va. 2005) (“[W]hen the
AEDPA limitations statute is unclear, it should be construed consistent with the statutory purpose
of curbing the abuse of the statutory writ of habeas corpus.”) (quoting Crawley, 257 at 400) (citation
omitted) (internal quotation marks omitted). Because neither of those cases are from South Carolina
nor did either of them address the question as to when a South Carolina PCR action is no longer
pending in the State’s highest court, it appears that no South Carolina magistrate judge or district
court judge has thought that Crawley answers the question as to when the final disposition of a
collateral proceeding is no longer pending under § 2244(d)(2) either.
Consequently, for all of these reasons, the Court is of the opinion that Crawley is of no
precedential value as to the question of when a state habeas petition in South Carolina is no longer
pending in the state’s highest court.
Finally, though not altogether clear, it appears that Respondent suggests that the Court may
have erred in entering its March 31, 2015, Order before allowing Respondent to file his reply to
Petitioner’s objections. See Respondent’s Motion 4, n.1. But, Respondent fails to give any hint as
to what arguments he would have made in a reply to Petitioner’s objections or to assert that he was
prejudiced in any way. And besides, how could he? The Court has fully addressed each of
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Respondent’s arguments in detail in this Order. Therefore, to the extent that Respondent contends
that the Court erred in filing its March 31, 2015, Order before Respondent was given the opportunity
to file a reply to Petitioner’s objections, the Court holds that any such alleged error was harmless.

VI.

CONCLUSION
For the foregoing reasons, Respondents Rule 59(e) motion is DENIED.
IT IS SO ORDERED.
Signed this 12th day of July, 2015, in Columbia, South Carolina.
s/ Mary G. Lewis
MARY G. LEWIS
UNITED STATES DISTRICT JUDGE

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