Drummond v. South Carolina

Filing 13

ORDER adopting 8 Report and Recommendations of Magistrate Judge Robert S. Carr. This petition for writ of error coram nobis is dismissed without prejudice and without requiring the respondent to file an answer or return. Signed by Honorable Terry L Wooten on 5/27/11.(hhil, )

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

Randy Drummond,

)
)
Petitioner,
)
)
vs.
)
)
State of South Carolina, et al.,
)
)
Respondent.
)
____________________________________)

Civil Action No.: 2:11-cv-142-TLW-RSC

ORDER
The petitioner, Randy Drummond (“petitioner”), filed a petition for writ of error coram nobis,
pro se, on January 19, 2011. (Doc. # 1).
This matter now comes before this Court for review of the Report and Recommendation (“the
Report”) filed by United States Magistrate Judge Robert S. Carr to whom this case had previously
been assigned. (Doc. # 8). In the Report, the Magistrate Judge recommends that the District Court
dismiss this petition for writ of error coram nobis without prejudice and without requiring the
respondent to file an answer or return. (Doc. # 8). The plaintiff filed objections to the Report. (Doc.
# 10). In conducting this review, the Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any party
may file written objections . . . . The Court is not bound by the recommendation of
the magistrate judge but, instead, retains responsibility for the final determination.
The Court is required to make a de novo determination of those portions of the report
or specified findings or recommendation as to which an objection is made. However,
the Court is not required to review, under a de novo or any other standard, the factual
or legal conclusions of the magistrate judge as to those portions of the Report and
Recommendation to which no objections are addressed. While the level of scrutiny
entailed by the Court’s review of the Report thus depends on whether or not
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objections have been filed, in either case, the Court is free, after review, to accept,
reject, or modify any of the magistrate judge’s findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citations
omitted).
In his objections, the petitioner requests that his petition for writ of error coram nobis be
construed as a motion for relief from judgment under Federal Rule of Civil Procedure 60(b). In his
petition, the petitioner also requests that the petition alternatively be construed as a Rule 60(b)(2)
motion. Construed as a Rule 60(b) motion, the petition for writ of error coram nobis is seeking relief
from this Court’s dismissal of the petitioner’s habeas petition under 28 U.S.C. § 2254. See
Drummond v. State of South Carolina, No.: 2:07-cv-3031-TLW-RSC. “Rule 60(b), like the rest of
the Rules of Civil Procedure, applies in habeas corpus proceedings under 28 U.S.C. § 2254 only ‘to
the extent that [it is] not inconsistent with’ applicable federal statutory provisions and rules.”
Gonzalez v. Crosby, 545 U.S. 524, 529 (2005) (quoting 28 U.S.C. § 2254 Rule 12) (alteration in
original). A Rule 60(b) motion that seeks vindication of one or more “claims” is, “if not in substance
‘a habeas corpus application,’ at least similar enough that failing to subject it to [the requirements
of 28 U.S.C. § 2244] would be ‘inconsistent with’” the federal statutory provisions and rules
applicable to habeas proceedings. Id. at 531 (citing 28 U.S.C. § 2254 Rule 12). The plaintiff’s Rule
60(b) motion seeks relief from this Court’s prior judgment based on newly discovered evidence. See
Fed. R. Civ. P. 60(b)(2). This Court concludes that the Rule 60(b) motion seeks vindication of one
or more claims and should therefore be considered a successive habeas petition which is subject to
the requirements of 28 U.S.C. § 2244, including seeking leave from the Fourth Circuit Court of
Appeals to file a successive habeas petition. Gonzalez, 545 U.S. at 530-31 (construing a Rule 60(b)

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motion as containing a claim where the motion seeks relief based on newly discovered evidence).
The petitioner has not demonstrated he has sought such leave. Additionally, a Rule 60(b) motion
based on newly discovered evidence must be made within a reasonable time but no more than a year
after the entry of the judgment or order from which relief is sought. Fed. R. Civ. P. 60(c). As noted
in the Report, this Court granted summary judgment to the respondents on the petitioner’s Section
2254 petition on August 18, 2008, and filed an Order on September 8, 2008, denying the petitioner’s
motion to alter or amend judgment. (No.: 2:07-cv-3031-TLW-RSC; Docs. 48, 52). The petitioner’s
appeal to the Fourth Circuit was dismissed on March 12, 2009, and his motion for rehearing and
rehearing en banc was subsequently denied. (No.: 2:07-cv-3031-TLW-RSC; Docs. 62, 64). The
petitioner filed the motion currently before the Court in January 2011, which is more than a year after
the order or judgment from which he is seeking relief. As a result, the petitioner’s motion for relief
from judgment is not timely under Federal Rule of Civil Procedure 60(c). Based on the foregoing,
the petitioner’s petition for writ of error coram nobis is still subject to dismissal even if it is
construed as a Rule 60(b) motion.
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report and
the objections. After careful review of the Report and objections thereto, the Court ACCEPTS the
Report. (Doc. # 8). Therefore, for the reasons articulated by the Magistrate Judge, this petition for
writ of error coram nobis is DISMISSED without prejudice and without requiring the respondent
to file an answer or return.
The Court has reviewed this petition in accordance with Rule 11 of the Rules Governing
Section 2254 Proceedings. The Court concludes that it is not appropriate to issue a certificate of

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appealability as to the issues raised herein. The petitioner is advised that he may seek a certificate
from the Fourth Circuit Court of Appeals under Rule 22 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.
s/Terry L. Wooten
United States District Judge
May 27, 2011
Florence, South Carolina

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