Warren v. Cartledge

Filing 35

ORDER accepting 24 Report and Recommendation of Magistrate Judge Mary Gordon Baker; granting 17 Motion for Summary Judgment. The Petition, ECF No. 1 , is DISMISSED with prejudice. The Court concludes that it is not appropriate to issue a certificate of appealability as to the issues raised herein. Signed by Chief Judge Terry L Wooten on 9/7/2017.(ssam, )

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

Timothy Jerome Warren,

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Petitioner,
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v.
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Warden Cartledge,
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Respondent.
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__________________________________________)

C/A No.: 2:16-cv-1911-TLW

ORDER
Petitioner Timothy Jerome Warren, a state prisoner proceeding pro se, filed this petition
pursuant to 28 U.S.C. § 2254. ECF No. 1. This matter now comes before this Court for review of
the Report and Recommendation (“the Report”) filed on June 27, 2017, by United States
Magistrate Judge Mary Gordon Baker, to whom this case was previously assigned pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c), (D.S.C.). In the Report, the
Magistrate Judge recommends that this Court grant the Respondent’s Motion for Summary
Judgment and dismiss the Petition with prejudice. ECF No. 24. Petitioner filed Objections to the
Report on August 22, 2017, ECF No. 32, and Respondent replied, ECF No. 33. This matter is now
ripe for disposition.
The Court is charged with conducting a de novo review of any portion of the Magistrate
Judge’s Report and Recommendation to which a specific objection is registered, and may accept,
reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C.
§ 636. In conducting its 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 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 light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report,
the applicable law, and the Objections. The Report sets forth the relevant dates related to the
untimeliness of the Petitioner’s filing. ECF No. 24 at 6-7. 1 This Court concludes that the Magistrate
Judge was correct in her determination that the habeas petition was filed two years, five months
after the time limitation had run. The Magistrate Judge also addresses the equitable tolling
question, noting that the record reflects the Petitioner admitted he was aware of and was offered a
fifteen year plea deal and did not take it, but pled hoping for a sentence of less than fifteen years.
ECF No. 24 at 9. After careful consideration, IT IS ORDERED that the Report, ECF No. 24, is
ACCEPTED, and the Petitioner’s Objections, ECF No. 32, are OVERRULED. Respondent’s
motion for summary judgment, ECF No. 17, is hereby GRANTED, and the Petition, ECF No. 1,
is DISMISSED with prejudice.

1

These dates will not be repeated here, as they are clearly laid out in the Report.

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
appealability as to the issues raised herein. 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____________
Chief United States District Judge
September 7, 2017
Columbia, South Carolina