Thomas v. Newton et al
Filing
127
ORDER AND OPINION Petitioner's motion to alter or amend a judgment to include specific findings of fact and conclusions of law (ECF No. 123) is denied. Signed by Honorable Margaret B Seymour on 07/14/2021.(hcor, )
IN THE UNITED STATES DISTRICT COURT
FOR DISTRICT OF SOUTH CAROLINA
Clark D. Thomas, #187845,
)
) C/A No. 2:19-3179-MBS
Petitioner,
)
)
vs.
)
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McKendley Newton, Jr., Warden of
)
ORDER AND OPINION
Allendale Correctional Institution, and
)
Alan M. Wilson, Attorney General of
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South Carolina,
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Respondents.
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____________________________________)
Petitioner Clark D. Thomas is an inmate in custody of the South Carolina Department of
Corrections. He currently is housed at Allendale Correctional Institution in Fairfax, South Carolina.
Petitioner was arrested after restraining his spouse (the “victim”) in a motel room overnight, during
which time he repeatedly beat her, bound her with duct tape, shackled her to a chair, and tased her
multiple times. He was convicted of criminal domestic violence of a high and aggravated nature and
kidnaping, and sentenced to incarceration for 10 years on the charge of criminal domestic violence
and 20 years on the charge of kidnaping, to be served concurrently. Petitioner pursued both his
direct appeal and post-conviction relief remedies at the state court level. On November 8, 2019,
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting the
following grounds for relief:
GROUND ONE: Petitioner’s 6th and 14th Amendment rights to the effective
assistance of counsel and due process were violated in trial counsel refusing a lesser
included charge of criminal domestic violence (CDV).
GROUND TWO: Petitioner’s 6th & 14th Amendment rights to the effective
assistance of counsel and due process were violated in trial counsel making negative
comments about Petitioner throughout his opening and closing statements.
GROUND THREE: Petitioner’s 6th & 14th Amendment rights to the effective
assistance of counsel and due process were violated in trial counsel failing to
impeach the alleged victim with her medical records.
GROUND FOUR: Petitioner’s 6th and 14th Amendment rights to the effective
assistance of counsel and due process were violated in trial counsel failing to argue
that the kidnapping should not have subjected Petitioner to the sex offender registry.
GROUND FIVE: Petitioner’s 6th and 14th Amendment rights to the effective
assistance of trial counsel and due process were violated in trial counsel making sure
that he was able to leave for vacation by abbreviating Petitioner’s trial.
GROUND SIX: Petitioner’s 6th and 14th Amendment rights to the effective
assistance of counsel and due process were violated in trial counsel failing to bring
up contradictions in the alleged victim’s testimony and previous statements.
GROUND SEVEN: Petitioner’s 14th Amendment right to due process was violated
in Respondents failing to disclose the alleged victim’s medical records.
GROUND EIGHT: Petitioner’s 6th and 14th Amendment rights to the effective
assistance of counsel and due process were violated in trial counsel failing to call
witnesses demonstrating that the alleged victim previously made statements that she
liked being tased.
GROUND NINE: Petitioner’s 6th and 14th Amendment rights to the effective
assistance of counsel and due process were violated in trial counsel in failing to
present evidence that Petitioner was entitled to a sentence pursuant to S.C. Code
Ann. § 16-25-90 for having suffered CDV at the hands of the alleged victim.
GROUND TEN: Petitioner’s 6th and 14th Amendment rights to the effective
assistance of counsel and due process were violated in trial counsel failing to
communicate and prepare Petitioner for trial.
GROUND ELEVEN: Petitioner’s 14th Amendment right to due process was
violated in Respondents failing to provide police reports concerning the alleged
victim.
GROUND TWELVE: Petitioner’s 14th Amendment right to due process was
violated by Respondents failing to disclose information concerning a plea offer with
the alleged victim.
GROUND THIRTEEN: Petitioner’s 6th and 14th Amendment rights to the effective
assistance of counsel and due process were violated in trial counsel failing to
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impeach the alleged victim with evidence of her plea offer with Respondents.
GROUND FOURTEEN: Petitioner’s 6th and 14th Amendment rights to the effective
assistance of counsel and due process were violated in trial counsel failing to object
to the kidnapping instruction that was given to the jury.
GROUND FIFTEEN: Petitioner’s 6th and 14th Amendment rights to the effective
assistance of counsel and due process were violated in trial counsel failing to object
to States Exhibits 1-2 and 41-45.
GROUND SIXTEEN: Petitioner’s 6th and 14th Amendment rights to the effective
assistance of counsel and due process were violated in trial counsel failing to object
to Respondents vouching for the credibility of the prosecuting witness during closing
arguments.
GROUND SEVENTEEN: Petitioner’s 6th and 14th Amendment rights to the
effective assistance of counsel and due process were violated in trial counsel failing
to seek the dismissal of the charges against Petitioner grounded on the violation of
Petitioner’s right to a speedy trial.
GROUND EIGHTEEN: Petitioner’s 6th and 14th Amendment rights to the effective
assistance of counsel and due process were violated in trial counsel failing to
properly cross-examine the detective in this case with his contradicting affidavit.
GROUND NINETEEN: Petitioner’s 6th and 14th Amendment rights to the effective
assistance of counsel and due process were violated in trial counsel failing to object
to the circumstances of aggravation charged to the jury in the instruction of
CDVHAN.
See generally ECF No. 1, 13-91.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the § 2254 petition
was referred to Magistrate Judge Mary Gordon Baker for a Report and Recommendation. The
parties filed cross-motions for summary judgment. On July 24, 2020, the Magistrate Judge issued
a Report and Recommendation in which she concluded that Petitioner’s § 2254 petition was
untimely under 28 U.S.C. § 2244(d). Taking into account times when the § 2244(d) limitations
period was tolled, Petitioner was required to file his § 2254 petition no later than July 25, 2018.
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Petitioner’s § 2254 petition was filed 471 days after the limitations period ended. The Magistrate
Judge also noted that Petitioner had filed a successive post-conviction relief (PCR) application that
still was pending in state court. The Magistrate Judge determined that Petitioner’s successive PCR
application was not timely under S.C. Code Ann. § 17-27-45(A). Because the successive PCR
application was not timely under state law, it was not “properly filed” for purposes of § 2244(d)(2)
and did not act to toll the limitations period. The Magistrate Judge recommended that the court deny
Petitioner’s motion for summary judgment and grant Respondents’ cross-motion for summary
judgment on the grounds that Petitioner’s § 2254 petition is time-barred.
Petitioner filed objections to the Report and Recommendation on January 4, 2021. Petitioner
argued that the first claim set forth in the successive PCR application was filed pursuant to S.C.
Code Ann. § 17-27-45(C) on the grounds of after-discovered evidence of the victim’s medical
records. Petitioner further argued that his second claim in the successive PCR application was based
on PCR counsel’s allegedly conspiring with Respondents to undermine the first PCR application,
and thus the claim could not have been raised in his first PCR application. The court found that the
victim’s medical records could have been subpoenaed prior to trial, so that his claim was not
cognizable as newly discovered evidence. The first claim for relief thus was not timely raised. The
court concluded that Petitioner’s second ground for relief also was barred as untimely. The court
further found that the Petitioner could not satisfy his burdens of showing equitable tolling or actual
innocence. On March 24, 2021, the court denied Petitioner’s motion for summary judgment, granted
Respondents’ cross-motion for summary judgment, and denied and dismissed Petitioner’s § 2254
petition, with prejudice. Judgment was entered March 24, 2021.
This matter now is before the court on Petitioner’s motion to alter or amend a judgment to
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include specific findings of fact and conclusions of law, which motion was filed on April 27, 2021.
Respondents filed a response in opposition on May 11, 2021, to which Petitioner filed a reply on
May 24, 2021.
DISCUSSION
Petitioner brings this motion pursuant to Fed. R. Civ. P. 52(a)(1) and 59(e). Rule 52(a)(1)
provides: “(a) Findings and Conclusions. (1) In General. In an action tried on the facts without a
jury or with an advisory jury, the court must find the facts specially and state its conclusions of law
separately. The findings and conclusions may be stated on the record after the close of the evidence
or may appear in an opinion or a memorandum of decision filed by the court. Judgment must be
entered under Rule 58.” Under Rule 52(b), a motion must be filed no later than 28 days after the
entry of judgment. Rule 59(e) provides: (e) Motion to Alter or Amend a Judgment. A motion to
alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”
Pursuant to Fed. R. Civ. P. 6(b)(2), a court cannot extend the time to act under Rules 52(b) and
59(e).
Respondents assert that Petitioner’s motion to alter or amend a judgment to include specific
findings of fact and conclusions of law was not timely filed. The court agrees. Petitioner’s motion
was due no later than 28 days after March 24, 2021, or April 21, 2021. Petitioner’s motion, cover
letter, and certificate of service are dated April 23, 2021. Petitioner also submitted an affidavit that
was notarized on April 24, 2021, and the envelope forwarding Petitioner’s filing to the Clerk of
Court is date stamped April 24, 2021.
In his reply, Petitioner contends that he should receive the benefit of the court’s standard
language that time should be extended by an additional three days if served by mail. According to
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Petitioner, when given the benefit of three days if served by mail, his time expired on April 24, 2021.
However, the full statement of the court’s standard language regarding deadlines reads: “Add an
additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R.
Crim. P. 45.” Rule 6 does not allow extensions of time for Rule 52(b) or 59(e) motions. The court
concludes that Petitioner’s motion was filed out of time.
Even if the court were to consider Petitioner’s motion for reconsideration, he cannot prevail.
Petitioner first contends that the court erred in declining to rule on the Magistrate Judge’s finding
that Petitioner could have subpoenaed the victim’s medical records to use as evidence during trial.
Petitioner raised the issue of the victim’s medical records in support of his argument he is entitled
to equitable tolling. In his objections to the Report and Recommendation, Petitioner contended that
the solicitor introduced pictures and medical records at trial that he had acquired at least eighteen
months prior to trial, but had suppressed. Petitioner asserted that the Magistrate Judge held him and
trial counsel accountable for relying on the presumption that the assistant solicitor was a scrupulous
government official, and taking the assistant solicitor at his word that all relevant materials had been
provided to Petitioner and trial counsel prior to trial. Petitioner claimed that the Magistrate Judge
“spurned facts favorable to Petitioner in favor of ruinous fallacies to justify her erroneous
recommendation to dismiss the case” and that he had, instead, established that trial counsel and PCR
counsel had acted adversely to Petitioner’s interests such that the medical records could not, in the
exercise of due diligence, been discovered prior to trial.
Next, Petitioner asserts that the court failed to make specific findings of fact or conclusions
of law regarding the assistant solicitor who prosecuted Petitioner’s case at the state level. According
to Petitioner, the court overlooked the solicitor’s purported suppression of a chain of custody report
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that showed the victim’s clothing was provided to the state eight months after Petitioner’s arrest on
February 20, 2007. Petitioner contends that the assistant solicitor deliberately misled the jury into
believing the victim’s testimony that the arresting officer discovered her clothing at the crime scene
on June7, 2006. In his objections to the Report and Recommendation, Petitioner asserted that the
Magistrate Judge’s failure to address the purportedly suppressed chain of custody report
demonstrated her interpretation of the background of this case to be factually flawed and biased.
Finally, Petitioner asserts that the court failed to make specific findings of fact or conclusions
of law on Petitioner being required to register as a sex offender despite his acquittal on the false
allegation of having sexually assaulted the victim. Petitioner argues that compelling him to register
as a sex offender constitutes a double-jeopardy violation inasmuch as the jury found Petitioner not
guilty of rape.1
In any event, Petitioner’s factual recitations do not explain why he did not timely file his §
2254 petition. Petitioner’s mere disagreement with the court’s ruling does not support a Rule 59(e)
motion. Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993).
CONCLUSION
For the reasons stated, Petitioner’s motion to alter or amend a judgment to include specific
findings of fact and conclusions of law (ECF No. 123) is denied.
1
Petitioner raised no objection regarding registering as a sex offender in his objections to the Report
and Recommendation. 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.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005).
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CERTIFICATE OF APPEALABILITY
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 that any assessment of the constitutional claims by the district
court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise
debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Rose v. Lee, 252 F.3d 676, 683-84
(4th Cir. 2001). The court concludes that Petitioner has not made the requisite showing.
IT IS SO ORDERED.
/s/ Margaret B. Seymour
Senior United States District Judge
Charleston, South Carolina
July 14, 2021
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