Petit v. McCall

Filing 33

ORDER RULING ON REPORT AND RECOMMENDATIONS. The Court adopts the Report to the extent it is consistent with this Order, and incorporates it herein. Therefore, it is the judgment of this Court that Respondents motion for summar y judgment 14 is GRANTED and the petition is DISMISSED without an evidentiary hearing.To the extent that Petitioner requests a certificate of appealability from this Court, that certificate is DENIED. Signed by Honorable Henry F Floyd on 09/27/2011. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
CHRISTOPHER PETIT,
Petitioner,
vs.
MICHAEL MCCALL,
Respondent.

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§ CIVIL ACTION NO. 4:10-01777-HFF-TER
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ORDER

This case was filed as a 28 U.S.C. § 2254 action. Petitioner is proceeding pro se. The matter
is before the Court for review of the Report and Recommendation (Report) of the United States
Magistrate Judge suggesting that Respondent’s motion for summary judgment be granted and the
petition be dismissed without an evidentiary hearing. The Report was made in accordance with 28
U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270 (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 with instructions. 28 U.S.C. § 636(b)(1).

The Magistrate Judge filed the Report on March 24, 2011, and the Clerk of Court entered
Petitioner’s objections to the Report on April 14, 2011. Petitioner lodges essentially three objections
against the Magistrate Judge’s Report.
His first objection challenges the Magistrate Judge’s recommendation that his petition is
time-barred. This objection is plainly without merit. The Court agrees with the Magistrate Judge
that “even if the first and second PCR [petitions] had been ‘properly’ filed and the relevant time
period tolled, this case is still clearly barred by the one-year statute of limitations.” Report 12, ECF
No. 26. Almost two years of untolled time elapsed between the South Carolina Supreme Court’s
issuance of the remittitur on his first PCR application and the filing of his second PCR application.
This lapse of time alone surpasses the one-year limitations period prescribed in 28 U.S.C. § 2244(d).
Thus, his instant petition is time-barred.
Petitioner next objects to the Magistrate Judge’s recommendation that he is not entitled to
equitable tolling. He contends that he suffers from “chronic mental health conditions that have
resulted in permanent disability.” Pet’r’s Objs. 6, ECF No. 29. He insists that he has suffered from
this disability since entering the Department of Corrections. Id. This mental disability, he avers,
is beyond his control and prevented him from filing a timely petition. Id. Petitioner has provided
documentation from a psychiatric hospital demonstrating that, on multiple occassions while
incarcerated, he has been treated for mental illness. Pet’r’s Resp. Ex. 1, ECF No. 24-2.
Equitable tolling of § 2244(d)’s one-year limitations period is permitted only in rare
instances. United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). To obtain its protection, a
petitioner must demonstrate “(1) he has pursued his rights diligently and (2) some ‘extraordinary

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circumstance’ prevented him from filing in a timely manner.” Green v. Johnson, 515 F.3d 290, 304
(4th Cir. 2008).
Mental incapacity may serve as a basis for equitable tolling, but only in exceptional
circumstances where it is profound. Sosa, 364 F.3d at 513. The Fourth Circuit has before found that
a petitioner’s “diligence in seeking to vacate or modify his sentence indicate[d] quite clearly that his
[mental incomptence was] not an extraordinary case.” Id.
Petitioner has failed to demonstrate that his mental illness problems prevented him from
filing a timely habeas petition. Although he conclusorily states that they did, his history of pursuing
post-conviction relief suggests otherwise. His diligence in pursuing habeas relief in this case
demonstrates that his mental incapacity does not prevent him from filing on time. He has repeatedly
met deadlines, and when unable to do so, he filed motions for extensions of time. His response to
Respondent’s motion for summary judgment and objections were lengthy, comprehensive, and lucid.
Nothing suggests that Petitioner’s condition has improved either. According to Petitioner, his
mental incompetence has existed and been ongoing since he entered the South Carolina Department
of Corrections. He does not allege that his chronic mental incapacity is any more severe now than
it was from 2005 to 2007—the almost two years that lapsed between the filings of his first and
second PCR applications. Simply stated, his performance belies his contention that he suffers from
a mental illness so profound as to have prevented him from filing his petitions in a timely manner.
Furthermore, the Court has reviewed the medical documents submitted by Petitioner in
support of his claim. Although they reflect that he suffers from mental illness, they do not suggest
that his mental illness is so profound as to prevent him from filing a timely federal habeas petition.
For these reasons, he is not entitled to equitable tolling.

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Petitioner lastly objects to the Magistrate Judge’s failure to address his arguments concerning
the existence of “cause and prejudice.” Pet’r’s Objs. 9. The Court has reviewed the objection and
finds it to be without merit.
After a thorough review of the Report and the record in this case pursuant to the standard set
forth above, the Court overrules Petitioner’s objections, adopts the Report to the extent it is
consistent with this Order, and incorporates it herein. Therefore, it is the judgment of this Court that
Respondent’s motion for summary judgment is GRANTED and the petition is DISMISSED
without an evidentiary hearing.
To the extent that Petitioner requests a certificate of appealability from this Court, that
certificate is DENIED.
IT IS SO ORDERED.
Signed this 27th day of September, 2011, in Spartanburg, South Carolina.

s/ Henry F. Floyd
HENRY F. FLOYD
UNITED STATES DISTRICT JUDGE

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NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this Order within 30 days from the date
hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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