Jones v. Lane

Filing 23

ORDER adopting 17 Report and Recommendation of Magistrate Judge Mary Gordon Baker; granting 8 Motion for Summary Judgment. It is further ordered that a certificate of appealability is denied. Signed by Honorable Joseph F Anderson, Jr on 9/21/2018.(ssam, )

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

Alwin T. Jones,

C/A No.: 2:17-2128-JFA-MGB
Petitioner,

vs.

ORDER

Gary Lane, Warden, Kershaw Correctional
Institution,
Respondent.

I.

INTRODUCTION
Alwin T. Jones, (“Petitioner”), is currently confined within the South Carolina

Department of Corrections. Petitioner, through counsel, filed the instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). On October 10, 2017, Gary Lane
(“Respondent”) filed a Motion for Summary Judgment and filed a return with a memorandum of
law in support. (ECF Nos. 6–8). On December 14, 2017, Petitioner, through counsel, responded.
(ECF No. 14). On December 21, 2017, Respondent replied to Petitioner’s response. (ECF No.
15). In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the
case was referred to the Magistrate Judge.
The Magistrate Judge assigned to this action1 prepared a thorough Report and
Recommendation (“Report”) and opines that this Court should grant Respondent’s Motion for

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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). The Court is charged with making a

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Summary Judgment because the petition is untimely; Plaintiff is not entitled to equitable tolling;
and Petitioner’s claim has no merit. (ECF No. 17). 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.
The Court is charged with making a de novo determination of those portions of the
Report to which specific objections are 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. See 28 U.S.C. § 636(b)(1). However, a district court is only
required to conduct a de novo review of the specific portions of the Magistrate Judge’s Report to
which an objection is made. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); Carniewski v. W.
Virginia Bd. of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific
objections to portions of the Report of the Magistrate, 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).
Petitioner was advised of his right to object to the Report, which was entered on the
docket on July 24, 2018. (ECF No. 17). Petitioner, through counsel, filed objections to the
Report (“Objections”) on August 20, 2018. (ECF No. 20). On September 4, 2018, Respondent
filed a Reply to Petitioner’s Objections. (ECF No. 21). Thus, this matter is ripe for review.
II.

STANDARD FOR SUMMARY JUDGEMENT
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper

when there is no genuine dispute as to any material fact and the moving party is entitled to

de novo determination of those portions of the Report and Recommendation 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. See 28 U.S.C. §
636(b).

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judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact
is one that “might affect the outcome of the suit under the governing law.” Spriggs v. Diamond
Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). A dispute of material fact is “genuine” if sufficient evidence favoring the
non-moving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S.
at 248–49.
The moving party bears the initial burden of showing the absence of a genuine dispute of
material fact. Celotex, 477 U.S. at 323. Once the moving party makes this showing, however, the
opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or
other means permitted by the Rule, set forth specific facts showing that there is a genuine issue
for trial. See Fed. R. Civ. P. 56(e). All inferences must be viewed in a light most favorable to the
non-moving party, but he “cannot create a genuine issue of material fact through mere
speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985).
III.

DISCUSSION
Within his petition for writ of habeas corpus, Petitioner sets forth the following ground

for relief (verbatim): “Violation of Due Process, Newly Discovered Evidence – Ministerial
Recorder lacked authority to issue arrest warrant for Armed Robbery.” (ECF No. 1). The Report
thoroughly outlines the applicable legal standards and properly analyzes the claim for relief
before recommending that Respondent’s Motion for Summary Judgment should be granted. The
Magistrate Judge opines that the petition is untimely; Petitioner is not entitled to equitable
tolling; and Petitioner’s claim has no merit. (ECF No. 17). Petitioner, through counsel, makes
two specific objections to the Report. (ECF No. 20).

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Initially, Petitioner objects to the recommendation that the statute of limitations should
not be equitably tolled. The Magistrate Judge agrees with Respondent’s contention that the
§ 2254 petition must be barred in this Court because it was not timely filed under the one-year
statute of limitations created by the Anti-Terrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”). Additionally, the Magistrate Judge has
carefully reviewed the record and finds no basis for equitable tolling in this case.
The AEDPA provides a one-year statute of limitations period on the filing of a § 2254
action. Subsection (d) of the statute reads:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court.
The limitation period shall run from the latest of–
(A) the date on which the 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 was asserted was
initially recognized by the Supreme Court, if the right has been
newly recognized by the Supreme Court and made retroactively
applicable 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.
(2) 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
shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d)(1).

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The Report recites the factual and procedural background giving rise to this action.
Briefly, on August 26, 1999, Petitioner pled guilty to three counts of first degree burglary, three
counts of second degree burglary, and armed robbery. Petitioner was sentenced to fifteen years
on each conviction for second degree burglary, thirty years on each conviction for first degree
burglary, and thirty years on the conviction for armed robbery; all sentences were set to run
concurrently.
A. Applying § 2244(d)(1)(A), the instant petition is untimely by more than fourteen years.
The Magistrate Judge opines that Petitioner’s habeas petition was clearly not filed within
the one-year time frame set forth in § 2244(d)(1)(A). Pursuant to Rule 203(b)(2) of the South
Carolina Rules of Appellate Procedure, “[a]fter a plea or trial resulting in conviction or a
proceeding resulting in revocation of probation, a notice of appeal shall be served on all
respondents within ten (10) days after the sentence is imposed.” On August 26, 1999, Petitioner
was sentenced and did not appeal, so his conviction became final ten days later on September 7,
1999. S.C. R. App. P. 203(b)(2); see, e.g., Edward v. Mauney, Civ. A. No. 9:15-2911-BHH,
2016 WL 6574157, at *2 (D.S.C. Nov. 7, 2016) (“Here, . . . Petitioner’s conviction became final
on June 28, 2010, ten days after he was sentenced, as he did not file a direct appeal of his
conviction and sentence.”); Mack v. Warden, Trenton Corr’l Inst., Civ. A. No. 4:16-838-HMHTER, 2016 WL 4761613, at *2 (D.S.C. Sept. 13, 2016) (“[The petitioner] was sentenced on
December 27, 2012, and did not file a direct appeal. Therefore, [the petitioner’s] conviction
became final ten days later on January 7, 2013, the expiration of the time period for filing a
timely direct appeal in state court.”).
The statute of limitations ran until Petitioner filed his first application for post-conviction
relief (“PCR”) on December 28, 1999. 28 U.S.C. § 2244(d)(2); Harris v. Hutchinson, 209 F.3d

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325, 327 (4th Cir. 2000) (“The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this subsection.”). When Petitioner
filed his first PCR application, 112 days of non-tolled time had passed. After a hearing, on
August 7, 2001, Petitioner’s first application for PCR was denied and the petition was dismissed.
Petitioner appealed, and on December 28, 2001, through counsel, filed a Johnson Petition for
Writ of Certiorari. Petitioner’s counsel also filed a petition to be relieved as counsel, and
Petitioner filed a pro se response to the Johnson petition. On April 18, 2002, the Supreme Court
of South Carolina denied the petition for a writ of certiorari and granted counsel’s request to
withdraw.
On May 7, 2002, the lower court filed the remittitur from Petitioner’s first PCR appeal.
Because the statute of limitations was tolled while Petitioner’s first PCR application was
pending, the statute was tolled from December 28, 1999 until May 7, 2002. See 28 U.S.C. §
2244(d)(2). Petitioner’s second and third PCR actions did not toll the limitations period, as they
were dismissed as untimely. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (stating that a
petitioner is not entitled to statutory tolling under § 2244(d)(2) if a state PCR court rejects his
petition as untimely). The statute of limitations began running again on May 8, 2002, and expired
253 days later, on January 16, 2003. Hernandez v. Caldwell, 225 F.3d 435, 439 (4th Cir. 2000)
(explaining that the day of the event from which the statute of limitations begins to run is
excluded in calculating the one-year period). Petitioner, through counsel, did not file the instant
habeas petition until August 11, 2017. Thus, using the time period set forth in § 2244(d)(1)(A), the
instant petition is untimely by more than fourteen years.
B. Applying § 2244(d)(1)(D), the instant petition is still untimely by more than six
months.
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The Magistrate Judge opines that Petitioner’s habeas petition was also clearly not filed
within the one-year time frame set forth in § 2244(d)(1)(D). On March 6, 2012, Petitioner filed
a fourth application for PCR asserting that he was in custody unlawfully due to “newly
discovered evidence.” According to Petitioner’s filing in his fourth application for PCR, he
“[d]iscovered on March 17, 2011 that John C. Sharpe who signed the arrest warrant as issuing
Judge lacked authority to do so.” Essentially, Petitioner challenged the qualifications of the
ministerial recorder who signed Petitioner’s arrest warrant. The State filed a Return and Motion
to Dismiss. After a hearing, on July 17, 2014, the state court judge denied the State’s Motion to
Dismiss. In that same order, the judge denied the application for post-conviction relief and
dismissed the petition. Petitioner appealed, and on August 31, 2015, through counsel, filed a
Petition for Writ of Certiorari. On December 16, 2016, the Supreme Court of South Carolina
denied the petition for a writ of certiorari. The remittitur was filed in the lower court on January
6, 2017.
Under § 2244(d)(1)(D), the one-year statute of limitations begins running on “the date on
which the factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence.” Thus, using Petitioner’s date of March 17, 2011 when he
claims he discovered “new evidence,” under § 2244(d)(1)(D), the one-year statute of limitations
began running on March 18, 2011. The statute was then tolled when Petitioner filed his fourth
application for PCR on March 6, 2012. At that time, 354 days of non-tolled time had passed.
After the remittitur was filed in the lower court on January 6, 2017, the statute of limitations
began running again on or about January 9, 2017, and expired eleven days later, on January 20,
2017. Therefore, in light most favorable to Petitioner, when Petitioner filed the instant § 2254
petition on August 11, 2017, it was untimely by over six months under § 2244(d)(1)(D).
C. Petitioner is not entitled to equitable tolling.
Next, the Magistrate Judge opines that Petitioner cannot establish grounds or show
extraordinary circumstances that the one-year limitations period should be equitably tolled. See
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Petitioner acknowledges that the petition is
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outside of the one-year time limitation period, but objects to the Magistrate Judge’s
recommendation that the statute of limitations is not subject to equitable tolling.
While § 2244(d) is subject to the principles of equitable tolling, the petitioner must show
that (1) he has been pursuing his rights diligently; and (2) that some extraordinary circumstance
prevented him from doing so. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Rouse v.
Lee, 339 F.3d 238 (4th Cir. 2003); United States v. Sosa, 364 F.3d 507 (4th Cir. 2004). Equitable
tolling is available only in “those rare instances where–due to circumstances external to the
party’s own conduct—it would be unconscionable to enforce the limitation period against the
party and gross injustice would result.” Rouse, 339 F.3d at 246; see also Sosa, 364 F.3d at 512.
The Fourth Circuit has held in Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000),
that rarely will circumstances warrant equitable tolling:
[A]ny invocation of equity to relieve the strict application of a statute of
limitations must be guarded and infrequent, lest circumstances of individualized
hardship supplant the rules of clearly drafted statutes. To apply equity generously
would loose the rule of law to whims about the adequacy of excuses, divergent
responses to claims of hardship, and subjective notions of fair accommodation.
We believe, therefore, that any resort to equity must be reserved for those rare
instances where-due to circumstances external to the party’s own conduct-it
would be unconscionable to enforce the limitation period against the party and
gross injustice would result.
Petitioner objects to the Report and argues that he is entitled to equitable tolling because
(1) he has been diligently pursuing his legal remedies available, and (2) “[a]n extraordinary
circumstance did stand in Petitioner’s way: Petitioner’s incarceration and the difficulty in
handling anything legal or obtaining counsel while housed in a corrections facility.” (ECF No.
20). Here, Petitioner has diligently pursued his rights in state court through his four PCR
applications and appeals of those applications. However, as to the second prong to warrant

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equitable tolling, the Court does not find that Petitioner’s circumstances, external or individual,
are such to create a gross injustice.
Here, Petitioner argues that he discovered “new evidence” on March 17, 2011 that the
ministerial recorder lacked authority to sign his warrant. Even using Petitioner’s date as the
starting point for the statute of limitations, the instant § 2254 petition is still untimely by more
than six months. Petitioner has not demonstrated that extraordinary circumstances prevented him
from filing this action on or before January 20, 2017. See Bogan v. South Carolina, 204 F. App’x
160, 160-61 (4th Cir. 2006) (“Recourse to equitable tolling must be guarded and infrequent.
Consequently, equitable tolling is appropriate only when the government’s wrongful conduct
prevents a petitioner from filing a timely petition or when extraordinary circumstances beyond the
petitioner’s control make timely filing impossible.”); see also Parmaei v. Jackson, 378 F. App’x
331, 332 (4th Cir. 2010) (“[W]e conclude that equity should operate to allow [the petitioner] to
pursue on § 2254 those claims that, but for the clerk’s docketing failure, would have been timely
before the district court.”).
In Hutley v. Warden, Lieber Correctional Institution, the United States District Court for
the District of South Carolina, citing to the Fourth Circuit, reasoned that “[c]ourts have held that
‘unfamiliarity with the legal process, lack of representation, or illiteracy does not constitute
grounds for equitable tolling.’” Hutley v. Warden, Lieber Corr. Inst., No. CV 9:17-2962-TMC,
2018 WL 3303283, at *2 (D.S.C. July 5, 2018) (citing Harris, 209 F.3d at 330–32.) In Hutley,
the petitioner argued “that the history of his underlying case warrants a finding of exceptional
circumstances because he has been incarcerated in the South Carolina Department of Corrections
(SCDC) with limited resources and limited access to legal materials.” Id. The court overruled the
petitioner’s objection because he failed to show grounds for equitable tolling and stated:

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Petitioner’s incarceration, as described, fails to qualify as exceptional
circumstances. See Cannon v. Bazzle, No. 9:05–0753, 2005 WL 2838116 (D.S.C.
Sept. 30, 2005) (finding that the petitioner’s bare allegations that he was denied
access to adequate legal resources were not sufficient, standing alone, to entitle
him to equitable tolling); Corrigan v. Barbery, 371 F. Supp. 2d 325, 330
(W.D.N.Y. 2005) (“In general, the difficulties attendant on prison life, such as . . .
restricted access to the law library . . . do not by themselves qualify as
extraordinary circumstances.”).
Id. at *3.
Here, Petitioner objects and asserts the bare allegation that the extraordinary
circumstance of “incarceration and the difficulty in handling anything legal or obtaining counsel
while housed in a corrections facility” stood in his way. However, similar to Hutley, being
incarcerated with limited resources and limited access to legal materials does not qualify as
extraordinary circumstances. Further, as the Fourth Circuit has explained, unfamiliarity with the
legal process or lack of representation does not constitute grounds for equitable tolling. Thus,
Petitioner’s objection is without merit and is overruled.
This Court has carefully reviewed the record and Petitioner’s objections to the Report and
agrees with the Magistrate Judge that Petitioner provides no basis for equitable tolling. Even if
Petitioner has shown that he acted with reasonable diligence in pursuing his claims in state court
as evidenced by Petitioner’s multiple filings of PCR applications and appeals from those
applications, Petitioner has not shown any extraordinary circumstances which prevented him
from filing a habeas petition on or before January 20, 2017. See Pace v. DiGuglielmo, 544 U.S.
408 (2005). Because the petition is untimely under the AEDPA, Petitioner is barred from seeking
federal habeas relief in this Court.
D. A discussion of the merits of Petitioner’s claim is not warranted.
Petitioner also objects to the Magistrate Judge’s discussion of the merits of Petitioner’s
claim. However, because this Court has determined that Petitioner’s habeas petition is barred by
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the statute of limitations and that Petitioner is not entitled to equitable tolling, a discussion of the
merits of the claim in unnecessary. Thus, Petitioner’s objection is overruled.
IV.

CONCLUSION
After carefully reviewing the applicable laws, the record in this case, the Report and

Recommendation, and the objections thereto, this Court finds the Magistrate Judge’s
recommendation fairly and accurately summarizes the facts and applies the correct principles of
law. The Report is incorporated herein by reference, and Petitioner’s objections are overruled.
Accordingly, Respondent’s Motion for Summary Judgment is granted and Petitioner’s habeas
petition is dismissed with prejudice. It is further ordered that a certificate of appealability is
denied because Petitioner has failed to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).1
IT IS SO ORDER.

___________________________________
JOSEPH F. ANDERSON, JR.
UNITED STATES DISTRICT JUDGE
September 21, 2018
Columbia, SC

1

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 (4th Cir. 2001). In the instant
matter, the Court finds that Petitioner has failed to make “a substantial showing of the denial of a
constitutional right.”

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