Tascoe v. South Carolina, The State of et al
OPINION AND ORDER adopting 15 Report and Recommendation of Magistrate Judge Mary Gordon Baker. The petition is dismissed with prejudice as untimely filed. A certificate of appealability is denied. Signed by Honorable Cameron McGowan Currie on 5/23/2017.(ssam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Eron James Tascoe, #127885,
C/A No. 2:17-235-CMC
Opinion and Order
Warden, Lee Correctional Institution,
This matter is before the court on Petitioner’s pro se petition filed in this court pursuant
to 28 U.S.C. §2254 on January 25, 2017. ECF No. 1. Petitioner challenges his conviction for
assault with intent to commit criminal sexual conduct, second degree in the Court of General
Sessions in Dorchester County, alleging ineffective assistance of counsel and failure of the trial
judge to notify the jury of a court’s exhibit Petitioner says would aid his claim of innocence.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(c), DSC, this
matter was referred to United States Magistrate Judge Mary Gordon Baker for pre-trial
proceedings and a Report and Recommendation. On March 30, 2017, the Magistrate Judge
issued an Order to Show Cause, noting the petition appeared to be untimely based on the
applicable statute of limitations, and providing petitioner twenty-one days to file a factual
explanation showing cause why his petition should not be dismissed as untimely. ECF No. 10.
Petitioner filed a response to the show cause order, appearing to state excusable neglect as a
reason for tolling the statute of limitations. ECF No. 12. On April 28, 2017, the Magistrate
Judge issued a Report recommending this matter be dismissed as untimely. ECF No. 15. The
Magistrate Judge advised Petitioner of the procedures and requirements for filing objections to
the Report and the serious consequences if he failed to do so. Petitioner timely filed objections.
ECF No. 17.
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). 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 or in part, the recommendation of the Magistrate Judge,
or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The
court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely
filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy
itself that there is no clear error on the face of the record in order to accept the
recommendation.’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
After conducting a de novo review of the record as to the objections made, and after
considering the applicable law, the Report and Recommendation of the Magistrate Judge, and
Petitioner’s objections, the court agrees with the conclusions of the Magistrate Judge.
Accordingly, the court adopts and incorporates the Report and Recommendation by reference in
Petitioner’s objections do not raise any factors that would lead the court to apply
equitable tolling in this case. The court agrees with the Magistrate Judge regarding Petitioner’s
claim of excusable neglect, which is not a ground for the application of equitable tolling. See
Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003). The court further agrees Petitioner has not met
the Schlup standard of a convincing showing of actual innocence needed to overcome the statute
of limitations. See Schlup v. Delo, 513 U.S. 298, 316 (1995).
The AEDPA statute of limitations is an affirmative defense, and it is improper to dismiss
this petition without allowing Petitioner the opportunity to provide evidence regarding equitable
tolling or other reasons his petition is not time-barred. United States v. McRae, 793 F.3d 392,
401 (4th Cir. 2015). However, Petitioner has been given two opportunities to present such
evidence, once in response to the Magistrate Judge’s Show Cause Order and again in his
objections to the Report, and has failed to do so each time. As the court has the power to raise
affirmative defenses sua sponte, and has warned Petitioner his case was subject to dismissal
pursuant to the statute of limitations, a dismissal based on untimeliness does not offend Fourth
Circuit precedent. Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002) (noting district court may
raise affirmative defense sua sponte but must warn petitioner case is subject to dismissal before
doing so); see also United States v. Blackstock, 513 F.3d 128 (4th Cir. 2008) (Petitioner must
have “opportunity to come forward with evidence that might justify the application of equitable
tolling or otherwise establish that his claims are not time-barred” before his petition is dismissed
based on statute of limitations).
Accordingly, the petition is dismissed with prejudice as untimely filed.
CERTIFICATE OF APPEALABILITY
The governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issue or issues
satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists
would find this court’s assessment of his constitutional claims is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. 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 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate of
appealability has not been met. Therefore, a certificate of appealability is denied.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
May 23, 2017
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