Harrell v. McCabe

Filing 46

ORDER adopting 39 Report and Recommendation. Signed by Honorable David C Norton on 2/26/13. (juwo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
DAVID HARRELL, JR.,

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Petitioner,
vs.
WAYNE MCCABE, Warden,
Respondent.

No. 2:11-cv-02830-DCN-BHH

ORDER

Petitioner David Harrell, Jr., a state prisoner, seeks habeas corpus relief under 28
U.S.C. § 2254. The matter was reviewed by the magistrate judge, who submitted a
Report and Recommendation (R&R) that respondent’s motion for summary judgment be
granted and the petition be denied. Petitioner filed written objections to the R&R. For
the reasons set forth below, the court adopts the magistrate judge’s R&R and grants
respondent’s motion for summary judgment.
I. BACKGROUND
Harrell was indicted in December 1998 for possession of a firearm or knife during
the commission of a violent crime; armed robbery; possession of a firearm by a convicted
felon; and grand larceny of a vehicle. A jury trial was held on July 27, 1999, and Harrell
was convicted of all offenses. The trial judge sentenced Harrell to life imprisonment for
armed robbery and concurrent sentences of ten years for grand larceny of a vehicle, five
years for possession of a firearm or knife during the commission of a violent crime, and
five years for possession of a firearm by a convicted felon. Harrell appealed and was
represented by counsel. On October 18, 2000, the South Carolina Court of Appeals

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affirmed the convictions and sentence. Harrell then filed a pro se motion for rehearing,
which was denied on January 26, 2001. The remittitur was issued on March 14, 2001.
Harrell filed an application for post conviction relief (PCR) on October 16, 2001.
On July 29, 2003, an evidentiary hearing was held where Harrell was represented by
counsel. The circuit court judge denied the PCR application and dismissed the case with
prejudice. Although the order of dismissal was signed on July 29, 2003, the parties
stipulate it was not received by Harrell’s counsel until May 31, 2004. Harrell did not file
a timely notice of appeal.
On June 22, 2005, Harrell filed an appeal pursuant to Austin v. State, 409 S.E.2d
395 (S.C. 1991).1 A consent order was filed on November 21, 2008, allowing the belated
appeal. With counsel, Harrell filed a petition for writ of certiorari on July 17, 2009,
followed by a supplemental petition for writ of certiorari on September 23, 2010. The
South Carolina Supreme Court issued an order granting the petition for writ of certiorari,
but later dismissed the writ as improvidently granted on September 26, 2011. The
remittitur was issued on October 13, 2011.
On October 11, 2011, Harrell, appearing pro se, filed the instant habeas petition in
federal court pursuant to 28 U.S.C. § 2254. He filed an amended petition on December 6,
2011, followed by a second amended petition on January 17, 2012. Harrell argues that
the South Carolina Supreme Court erred in not finding his trial counsel’s assistance
ineffective.2

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“An Austin appeal is used when an applicant is prevented from seeking appellate review of a
denial of his or her PCR application, such as when an attorney fails to seek timely review.”
Odom v. State, 523 S.E.2d 753, 756 (S.C. 1999).
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Harrell originally asserted two grounds for relief when filing his habeas petition. For his first
ground, he contended that the trial court did not have jurisdiction to try him for armed robbery, as
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On April 4, 2012, respondent filed a motion for summary judgment. Respondent
asserts that the habeas petition filed by Harrell must be dismissed because it was filed
outside of the one-year limitations period established by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). Harrell responds that his habeas petition is not
untimely because the time between the conclusion of his first PCR action and the filing of
his Austin appeal should be statutorily tolled under 28 U.S.C. § 2244(d)(2).
II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C.
636(b)(1). The court may adopt the portions of the R&R to which the plaintiff did not
object, as a party’s failure to object is accepted as agreement with the conclusions of the
magistrate judge. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The recommendation of
the magistrate judge carries no presumptive weight and the responsibility to make a final
determination remains with this court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976).
This court may accept, reject, or modify the report of the magistrate judge, in whole or in
part, or may recommit the matter to her with instructions for further consideration. 28
U.S.C. § 636(b)(1).
The AEDPA provides relief to persons in custody pursuant to the judgment of a
state court on the ground that the custody is “in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). The statute requires a petitioner to
exhaust all available remedies in state court before the federal court may consider a

the indictment failed to state the element of asportation. In his second amended petition, Harrell
withdraws this argument and proceeds solely on his second ground, which is for ineffective
assistance of counsel.
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claim. Id. § 2254(b)(1)(A). Further, the AEDPA requires that an application for writ of
habeas corpus be filed within one year from the latest of:
(A) the date on which 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 application 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.
Id. § 2244(d)(1). Section 2244(d)(2) allows for tolling of 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.” Id. § 2244(d)(2).
III. DISCUSSION
Harrell objects to the magistrate judge’s finding that the habeas petition is timebarred, asserting that the time between the conclusion of his first PCR application and the
belated filing of his appeal should be statutorily tolled as the matter was “pending” as
provided by 28 U.S.C. § 2244(d)(2).
In Carey v. Saffold, 536 U.S. 214 (2002), the Supreme Court defined “pending”
under § 2244(d)(2) as follows: “[A]n application is pending as long as the ordinary state
collateral review process is ‘in continuance’- i.e., ‘until the completion of’ that process.
In other words, until the application has achieved final resolution through the State's postconviction procedures, by definition it remains ‘pending.’” Id. at 219-20. The Court

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further clarified in Evans v. Chavis, 546 U.S. 189 (2006), that the time “an application for
state post conviction review is ‘pending’ includes the period between (1) a lower court's
adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the
filing of the notice of appeal is timely under state law.” Id. at 849 (emphasis added).
In Allen v. Mitchell, 276 F.3d 183 (4th Cir. 2011), the Fourth Circuit laid out
three periods that are relevant when determining the availability of tolling in the case of
an out-of-time PCR appeal. First, there is the “Appeal Period,” the time “between the
lower court decision and the deadline for seeking review.” Id. at 185. Second, the “Post
Deadline Period” is the “interval between the deadline and the filing of an appellate
petition.” Id. Last is the “Review Period,” which consists of the time “during which the
appellate petition is under review by the state court.” Id. The court concluded that §
2244(d)(2) tolling applies only to the Appeal Period and the Review Period because
permitting tolling of the Post Deadline Period “would undermine the statute of limitations
by allowing state courts to extend indefinitely the time for seeking federal review.” Id. at
186.
The court agrees with the magistrate judge that Harrell’s PCR application was not
“pending” as that term is understood under 28 U.S.C. § 2244(d)(2). Following the
conclusion of Harrell’s direct appeal of his convictions and sentence, 232 days elapsed
prior to the filing of his first PCR application. An additional 357 days of untolled time
passed during the “Post Deadline Period,” i.e., the time from the end of the Appeal Period
to the filing of his belated appeal. See Allen, 276 F.3d at 186 (disallowing tolling during
the Post Deadline Period). Thus, the petition was not filed within one year of the date on

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which judgment became final and is time-barred.3 See, e.g., Moore v. Crosby, 321 F.3d
1377, 1380 (11th Cir. 2003) (finding that AEDPA's § 2244(d)(2) “statutory tolling
provision does not encompass the period of time in which a state prisoner does not have a
‘properly filed’ post-conviction application actually pending in state court”); McHoney v.
South Carolina, 518 F. Supp. 2d 700, 705 (D.S.C. Aug. 14, 2007) (holding that
petitioner’s first PCR application “ceased to be ‘pending’ for purposes of calculating the
tolling of the federal limitations period” upon the expiration of time for a timely appeal);
Hepburn v. Eagleton, No. 6:11-cv-2016, 2012 WL 4051126, at *3 (D.S.C. Sept. 13,
2012) (“[T]he petitioner’s . . . PCR application did not remain ‘pending’ under §
2244(d)(2) during the time period between the denial of the first PCR application and the
grant of the belated appeal.”); Israel v. McCall, No. 3:11-2999, 2012 WL 3877669, at *2
(D.S.C. Sept. 6, 2012) (adopting the R&R’s finding that time was not tolled between the
conclusion of an initial PCR application and the filing of an “Austin PCR because there is
no proceeding pending during that time”).
Finally, Harrell did not object to the R&R’s finding that he was not entitled to
equitable tolling. The court has nonetheless reviewed the discussion and agrees with the
magistrate judge that equitable tolling is not appropriate in this case.
IV. CONCLUSION
For the reasons set forth above, the court ADOPTS the magistrate judge’s R&R
and GRANTS respondent’s motion for summary judgment.

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Harrell principally relies on Taylor v. Lee, 186 F.3d 557 (4th Cir. 1999), to support his
argument that the period for filing a habeas petition is tolled between the conclusion of his initial
PCR application and the filing of his belated appeal. However, Taylor did not address the issue
of tolling as it relates to an out-of-time appeal of the denial of a PCR application.
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The court also DENIES a certificate of appealability because petitioner has failed
to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2).
AND IT IS SO ORDERED.

_________________________________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
February 26, 2013
Charleston, South Carolina

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