Curry v. South Carolina, State of

Filing 36

ORDER adopting 14 Report and Recommendation; dismissing petition without prejudice; and denying Petitioner's 29 Motion for Reconsideration. A certificate of appealability is denied. Signed by Honorable Joseph F Anderson, Jr on 2/21/2017. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION

James B. Curry, #186737,

C/A No. 1:16-01676-JFA

Petitioner,
vs.
ORDER
Warden of Lee Correctional Institution,
Respondent.

I.

INTRODUCTION

James B. Curry (“Petitioner”), proceeding pro se and in forma pauperis, filed this petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 against the warden of Lee Correctional
Institution (“Respondent”).
II.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner is a South Carolina Department of Corrections (“SCDC”) inmate incarcerated
at the Lee Correctional Institution (“LCI”). ECF No. 1 at 1. On May 23, 2016, Petitioner’s
petition for writ of habeas corpus was filed. ECF No. 1-3 at 2. In addition, Petitioner moved for
leave to proceed in forma pauperis under 28 U.S.C. § 1915, ECF No. 8, which was granted on
June 17, 2016, by Magistrate Judge Shiva V. Hodges, ECF No. 13.
The Magistrate Judge assigned to this action1 prepared a thorough Report and
Recommendation (“Report”) and opines that this Court should dismiss this petition without
prejudice and without requiring Respondent to file a return, rendering Petitioner’s motion to

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2)(c) (D.S.C.). The Magistrate Judge makes only a recommendation to this Court. The
recommendation has no presumptive weight, and the responsibility to make a final determination remains
with the Court. Mathews v. Weber, 423 U.S. 261 (1976).
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expedite moot. ECF No. 10. In addition, dismissal of the petition due to its untimeliness renders
Petitioner’s request to amend moot.2 ECF No. 18. The Report sets forth in detail the relevant
facts and standards of law on this matter, and this Court incorporates those facts and standards
without a recitation.3 Petitioner was advised of his right to object to the Report, which was
entered on the docket on June 17, 2016. ECF Nos. 14, 15. The Magistrate Judge gave Petitioner
until July 5, 2016, to file objections. Id. Petitioner did not file objections to the Report.4 ECF No.
16. On July 12, 2016, Petitioner filed a letter correcting a previous selection made on his petition
with regard to exhaustion of remedies; however, this correction is insignificant to the Report’s
analysis regarding untimeliness. ECF No. 17.
On November 9, 2016, this Court issued an order adopting the Report, as modified, and
dismissing the petition without prejudice and without requiring Respondent to file a return
because the petition was untimely.5 ECF No. 21. In addition, a certificate of appealability was
denied. Id. On December 5, 2016, a notice of appeal was docketed. ECF No. 24. Upon review of
the documents received by the Fourth Circuit, this Court respectfully found that a portion of the
documents should be considered as a motion to alter or amend the judgment under Rule 59(e) of
the Federal Rules of Civil Procedure as Petitioner claimed he had not received the Report
previously, and, thus, was unable to object to it. ECF No. 29. On December 13, 2016, this Court
vacated its previous order and issued an order to allow Petitioner an opportunity to object to the
2

On August 29, 2016, Petitioner filed a motion to amend his petition to add additional grounds. ECF No.
18. However, because Petitioner’s federal habeas corpus petition is deemed untimely, his motion to
amend his petition is futile and moot. In addition, if this request to amend was construed as a request to
present a second habeas corpus application, it fails to meet the requirements. See 28 U.S.C. § 2244.
3
The Court makes minute changes to account for possible scriveners’ errors on the third page of the
Report wherein the assigned electronic court filing (ECF) docket entry number should be ECF 1-3 and on
the sixth page of the Report wherein it states that Petitioner’s federal time limitation for filing this habeas
action expired by July 9, 2012, where it presumptively should state June 9, 2012.
4
As discussed infra, Petitioner disputes that he received the Report or its attached objection notice.
5
The order rendered Petitioner’s motion to expedite moot and his motion to amend his petition futile and
moot.

2

Report. ECF No. 30. On December 20, 2016, Petitioner filed an “Objection to the Court’s
response to reconsideration dated 12-13-16.” ECF No. 32. However, Petitioner’s objection
attempted to argue that this Court’s order was “an admission of guilt, as to the Court not serving
a copy of the report and recommendation.” Id. On December 29, 2016, the Court directed
Petitioner’s attention to the portion of the order acknowledging that it was possible Petitioner did
not receive the Report—not that the Report was not sent to him. ECF No. 33 at 2. In addition, the
Court clarified that its “previous order was allowing [Petitioner] an opportunity to object to the
Report, and the Court intended to review his objections, if any, and issue an order addressing the
Report when appropriate.” Id. Thus, due to Petitioner’s apparent confusion, this Court allowed
him an additional fourteen (14) days to submit objections to the Report. Id. at 2–3. Moreover,
this Court made it explicitly clear that “[n]o additional opportunities [would] be provided to
Petitioner with regard to this matter.” Id. at 2. On January 3, 2017, the Fourth Circuit issued a
mandate and order dismissing the appeal. ECF No. 35. Thus, Petitioner was able to submit
objections to the Report until January 11, 2017. ECF No. 33
However, despite the numerous opportunities provided to Petitioner to object to the
Report, Petitioner has failed to file any objections to it. In addition, the Court has waited ample
time to allow any objections to be received in the event that they were timely mailed. Thus, this
matter is ripe for the Court’s review.6
III.

DISCUSSION

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

Due to Petitioner’s failure to object to the Report, the Court abides by its original ruling dated
November 9, 2016, and restates its opinion with slight modifications below. ECF No. 21. Furthermore,
Petitioner’s motion for reconsideration has been addressed as the Court vacated its order to allow
Petitioner the opportunity to object to the Report. ECF Nos. 29, 30, 31.
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or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. § 636(b)(1). In the absence of specific objections to the
Report of the Magistrate Judge, this Court is not required to give an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
The Court modifies the Report to reflect that Petitioner’s one year statute of limitations
period for his federal habeas corpus petition began to accrue no later than after Petitioner failed
to appeal the order dismissing his third motion for a new trial (issued on March 18, 2010)
because, by that time, his conviction was deemed final. ECF No. 11-1 at 10; see Gonzalez v.
Thaler, 132 S. Ct. 641, 656 (2012) (“We further hold that, with respect to a state prisoner who
does not seek review in a State’s highest court, the judgment becomes ‘final’ under §
2244(d)(1)(A) when the time for seeking such review expires.”). On May 14, 2010, when
Petitioner filed his first state post-conviction relief (“PCR”) application, the one year statute of
limitations period for a federal habeas corpus petition was simply tolled. ECF No. 11-1 at 9; see
28 U.S.C. § 2244(d)(2). After Petitioner did not appeal the order issued regarding his PCR
application on May 9, 2011, the one year statute of limitations began to accrue again. ECF No.
11-1 at 20.
The filing history of Petitioner’s case is complex and includes several motions, a second
state PCR application (deemed untimely and successive),7 and two state habeas corpus petitions.
ECF No. 11-1; ECF No. 1-2 at 10–11. Nonetheless, even if the Court only counted the days
between (1) the finality of Petitioner’s conviction and his first PCR application; (2) the finality of
his first PCR application and the filing of his second PCR application; and (3) the South Carolina

On May 7, 2014, the South Carolina Supreme Court ruled Petitioner “failed to show that there [wa]s an
arguable basis for asserting that the determination by the lower court was improper.” ECF No. 11-1 at 31;
see ECF No. 11-1 at 21–22. Therefore, Petitioner’s second PCR application does not serve to toll the
statute of limitations period. See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005).
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Supreme Court’s “final ruling in this matter,” ECF No. 1-2 at 11, and the date the federal habeas
corpus petition was filed in this Court, Petitioner has well exceeded the one year statute of
limitations allowed.8 Therefore, Petitioner’s federal habeas corpus petition is untimely under 28
U.S.C. § 2244(d).
Furthermore, the Magistrate Judge correctly recommended that Petitioner is not entitled
to equitable tolling. ECF No. 14 at 6–8. Because Petitioner’s habeas corpus petition is barred
pursuant to 28 U.S.C. § 2244(d), the Court will not address whether the claims in the petition are
otherwise procedurally barred.
IV.

CONCLUSION

After a careful review of the record, the applicable law, and the Report, this Court finds
the Magistrate Judge’s recommendation is proper. Accordingly, the Court ADOPTS the Report
and Recommendation of the Magistrate Judge, ECF No. 14, as modified, and dismisses this
petition without prejudice and without requiring Respondent to file a return, rendering
Petitioner’s motion to expedite moot, ECF No. 10. In addition, Petitioner’s motion to amend his
petition is futile and moot. ECF No. 18.

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The fact Petitioner petitioned the United States Supreme Court does not toll the statute of limitations in
this case. See Lawrence v. Florida, 549 U.S. 327, 332 (2007) (“The application for state postconviction
review is therefore not ‘pending’ after the state court’s postconviction review is complete, and §
2244(d)(2) does not toll the 1–year limitations period during the pendency of a petition for certiorari
[before the United States Supreme Court].”); Crawley v. Catoe, 257 F.3d 395, 401 (4th Cir. 2001) (“We
hold that the time the petition for certiorari, which sought review of the adverse decision in the state
habeas proceeding, was pending in the United States Supreme Court did not toll the one-year limitations
of § 2244(d)(1).”).
5

Further, because Petitioner has failed to make “a substantial showing of the denial of a
constitutional right,” a certificate of appealability is DENIED. 28 U.S.C. § 2253(c)(2).9
IT IS SO ORDERED.

February 21, 2017
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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); Slack
v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683–84 (4th Cir. 2001).
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