Furwell v. Cartledge

Filing 35

ORDER RULING ON REPORT AND RECOMMENDATION. The Court hereby overrules all of Petitioner's objections and adopts the Magistrate Judge's R&R. IT IS THEREFORE ORDERED that Petitioner's motion to dismiss without pre judice 25 is DENIED; that Respondent's motion for summary judgment 16 is GRANTED; and therefore, that Petitioner's § 2254 petition is DISMISSED without prejudice. All other motions are deemed moot. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Honorable R Bryan Harwell on 8/8/2012. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Randy M. Fuewell,
Petitioner,
v.
Mr. Leroy Cartledge, Warden,
Respondent.

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Civil Action No.: 4:11-cv-02757-RBH

ORDER

Petitioner Randy M. Fuewell, a state prisoner proceeding pro se, initiated this action by
filing his Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus. Respondent filed a return,
along with a motion for summary judgment. Petitioner filed a motion to voluntarily dismiss the
petition without prejudice in order to pursue a related claim in state court. He also filed a motion
for an extension to respond to Respondent’s motion if the Court denied his motion to dismiss.
These matters are now before the Court after the issuance of the Report and Recommendation
(“R&R”) of United States Magistrate Judge Thomas E. Rogers, III.1 In the R&R, the Magistrate
Judge recommends that the Court grant Respondent’s motion, deny Petitioner’s motions, and
dismiss Petitioner’s petition as untimely.
Factual Background and Procedural History
Petitioner was indicted on charges of murder and possession of a firearm during the
commission of a violent crime in July 2001. He was represented by Jerry M. Screen and pleaded
guilty to both charges on October 21, 2001. The trial court sentenced him to concurrent terms of
thirty years’ imprisonment for the murder conviction and five years’ imprisonment for possession of

1

In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this matter was
referred to the Magistrate Judge for pretrial handling.

a firearm. Petitioner did not file a direct appeal within the ten-day period provided by South
Carolina law.
On April 22, 2002, Petitioner filed a pro se application for post-conviction relief (“PCR”).
He claimed his guilty plea was involuntary because he was not aware of the defense of self-defense.
Moreover, he alleged his counsel was ineffective for failing to properly investigate the case, failing
to put forth a self-defense claim, and failing to file an appeal of his guilty plea. Thomas Lynn
Ogburn III represented Petitioner at an evidentiary hearing that was held on November 6, 2006.
The PCR court issued an order of dismissal on January 11, 2007, and a Johnson2 petition for writ of
certiorari was timely filed. That petition, however, was denied by the South Carolina Supreme
Court on May 7, 2008, and remittitur was issued on May 23, 2008.3
Subsequently, Petitioner filed this Petition Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus. In his petition, he raises multiple grounds, including violations of his due process rights
under Brady v. Maryland, 373 U.S. 83 (1963), violations of Rule 5 of the South Carolina Rules of
Criminal Procedure, violations of his due process rights for improperly dismissing his successive
PCR applications, ineffective assistance of trial counsel, and the sentencing court’s lack of subject
matter jurisdiction. He asks the Court to reconsider his sentence. Pet., ECF No. 1.
Respondent filed a return and a motion for summary judgment on February 1, 2012. ECF
Nos. 15, 16. He contended that Petitioner’s petition is barred by the statute of limitations or,
alternatively, that the claims in the petition are without merit. Petitioner, after he was given notice
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and after the Magistrate Judge
granted a motion for an extension, filed a four-page response but provided no sworn affidavits or
2

Johnson v. State, 364 S.E.2d 201 (S.C. 1988).
Subsequently, Petitioner filed two more PCR applications; however, because he concedes in his
objections that they were both successive and untimely, the Court need not address them in detail
after the facts were thoroughly stated in the R&R.
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evidence to support the allegations in his petition. ECF No. 24. He also filed two motions: one to
voluntarily dismiss his petition in order for him to pursue a claim in state court and the other to
extend the period for him to further respond to Petitioner’s motion for summary judgment if the
Court denied his motion to dismiss. ECF Nos. 25, 26. Subsequently, the Magistrate Judge issued an
R&R, recommending that the Court grant Respondent’s motion and dismiss Petitioner’s petition as
untimely. R&R 12, ECF No. 29. The R&R also recommended denying Petitioner’s motion to
dismiss and finding his motion for an extension moot. Id. at 3 n.4, 12. Petitioner filed timely
objections to the R&R. Pet’r’s Objs., ECF No. 32.
Standard of Review
The Magistrate Judge makes only a recommendation to the 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, 270-71 (1976). The Court is charged with making a de novo
determination of those portions of the R&R 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 him with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a
party makes only "general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate's proposed findings and recommendations." Id. Moreover, in the absence of
objections to the R&R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of
objections, the Court must “ ‘satisfy itself that there is no clear error on the face of the record in

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order to accept the recommendation.’ ” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Discussion
1. Motion to Dismiss
The Magistrate Judge recommends that the Court deny Petitioner’s motion to dismiss.
Specifically, he concludes that allowing Petitioner to dismiss the petition without prejudice, giving
the Petitioner the ability to re-file, would in turn prejudice the Respondent, who has filed his motion
for summary judgment. R&R 2-3. Petitioner objects to the recommendation, and although his
arguments are difficult to follow,4 he emphasizes that dismissal would not prejudice Respondent.
Pet’r’s Objs. 2-6.
Voluntary dismissal of an action after a responsive pleading or motion for summary
judgment requires an order of the Court. Fed. R. Civ. P. 41(a)(2); see also Rs. Governing § 2254
Cases in the U.S. Dist. Cts. 12 (“The Federal Rules of Civil Procedure, to the extent that they are
not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under
these rules.”). Dismissal must be “on terms that the court considers proper.” Fed. R. Civ. P.
41(a)(2).

Motions for voluntary dismissal without prejudice are generally not denied unless

substantial prejudice to the defendant exists. Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir.
1986). However, denial may be appropriate after a court considers the circumstances and any
relevant factors, including “(1) the opposing party’s effort and expense in preparing for trial; (2)
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In Petitioner’s motion, he argues the purpose of the dismissal is to enable him to “pursue a
possible ‘unexhausted remedy’ in the state court(s).” Pet’r’s Resp. 1, ECF No. 25. He elaborates in
his objections, claiming that the statute of limitations governing PCR proceedings does not apply in
appeals pursuant to Austin v. State, 409 S.E.2d 395 (S.C. 1991) (relating to belated PCR appeals),
and, apparently, that he has preserved claims related to his first PCR proceeding that he can still
bring in state court. Pet’r’s Objs. 3-4. This argument has no basis in law, especially given the fact
he timely and directly appealed the ruling of the PCR court in his first PCR proceeding by filing a
petition for a writ of certiorari to the South Carolina Supreme Court.
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excessive delay or lack of diligence on the part of the movant; (3) insufficient explanation of the
need for a dismissal; and (4) the present stage of the litigation, i.e., whether a dispositive motion is
pending.” Hobbs v. Kroger Co., No. 98-1831, slip op. at 3, 1999 WL 156045, at *1 (4th Cir. Mar.
23, 1999) (citing Phillips USA, Inc. v. All-flex USA, Inc., 77 F.3d 354, 358 (10th Cir 1996); Paulucci
v. City of Duluth, 826 F.2d 780, 783 (8th Cir. 1987)); Ohlander v. Larson, 114 F.3d 1531, 1537
(10th Cir. 1997); cf. Howard v. Inova Health Care Servs., 302 F. App’x 166, 179-80 (4th Cir. 2008)
(noting that “a district court does not abuse its discretion in denying a motion for voluntary
dismissal if the case has advanced to the summary judgment stage and the parties have incurred
substantial costs in discovery.”).
As the Court finds below, Petitioner’s petition is untimely. Granting Petitioner’s motion to
dismiss without prejudice would allow him to avoid summary judgment on the question of
untimeliness and delay the inevitable.5 Respondent’s fifty-one-page motion for summary judgment
shows a considerable effort in responding to the claims asserted in his petition, and Petitioner
waited nearly two-months after the motion to make his motion to dismiss. The petition is untimely
now, and it will remain untimely if it is dismissed without prejudice. The issue must be decided
with finality, a significant policy behind the federal habeas statute of limitations. See Williams v.
Taylor, 529 U.S. 420, 436 (2000) (“[The Antiterrorism and Effective Death Penalty Act’s] purpose
[is] to further the principles of comity, finality, and federalism.” (emphasis added)). Therefore, the
Magistrate Judge’s recommendation to deny Petitioner’s motion to dismiss is without error.

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Petitioner even concedes “that he has no desire/intention of introducing, (or rather, reintroducing)
‘any new claims’ (grounds) upon resubmission to this Court.” Pet’r’s Objs. 5.
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2. Motion for an Extension
The Magistrate Judge concludes Petitioner’s motion for an extension, dated the day before
the deadline, is moot. R&R 3 n.4. Petitioner argues in his objections that the Magistrate Judge
improperly issued the R&R before ruling on his second motion for an extension.6 Pet’r’s Objs. 7.
Given the Court’s below acceptance of the Magistrate Judge’s recommendation regarding
Respondent’s motion for summary judgment, the Court finds the Magistrate Judge properly
concluded that the motion for an extension was moot. Petitioner filed a response to the motion on
the same day he filed his motion for an extension, and both filings were received by the Court the
day after the deadline. The question of whether to grant a second motion for an extension is within
the discretion of the Court. Thus, the Magistrate Judge properly found the motion moot after
having received an actual response from Petitioner. The objection by Petitioner is overruled.
3. Motion for Summary Judgment
The Magistrate Judge recommends that the Court grant Respondent’s motion for summary
judgment and dismiss the petition as untimely. In addition to his conclusion that Petitioner’s
petition was untimely,7 the Magistrate Judge “concludes there is no evidence that warrants equitable
tolling.” R&R 10. In his objections, Petitioner apparently concedes that his petition was untimely
but contends his untimeliness was due to extraordinary and external circumstances that would merit
equitable tolling. Those circumstances, he argues, are “[n]ot waiving his right to a direct appeal[,
and] not receiving the notice to file [a] pro se response to [a] Johnson[ v. State, 364 S.E.2d 201
(S.C. 1988)] petition.” Pet’r’s Objs. 13.
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After granting Petitioner’s first motion for an extension, the Magistrate Judge ordered a March 28,
2012 deadline for Petitioner’s response. See Text Order, ECF No. 20. The Court received both the
motion and the response to motion for summary judgment on March 29.
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Petitioner, in his objections, also concedes that his second and third PCR applications untimely
and successive. Given Petitioner’s admission, the Court finds that his subsequent petitions were not
properly filed and did not toll the statute limitations under 28 U.S.C. § 2244(d)(2).
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Petitioners in state custody “pursuant to the judgment of a [s]tate court” must comply with a
one-year statute of limitations in seeking a writ habeas corpus. 28 U.S.C. § 2244(d)(1). The
limitation period begins to “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 [s]tate action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
[s]tate action;
(C) the date on which the constitutional right 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.
Id. However, the limitation period is tolled during the pendency of properly filed state PCR
proceedings “with respect to the pertinent judgment or claim.” Id. § 224(d)(2); see also Taylor v.
Lee, 186 F.3d 557, 561 (4th Cir. 1999) (holding that state PCR proceedings toll the limitation period
“from initial filing [until] final disposition by the highest state court”).
After reviewing Petitioner’s objections, the Court cannot find that he, in his response, has
created a genuine dispute of any fact material to the statute of limitations issue raised by
Respondent. Fed. R. Civ. P. 56(a), (e). Respondent alleges that Petitioner’s petition was untimely
and that the deadline for filing his petition was December 3, 2008. Petitioner did not file his
petition until September 7, 2011, at the earliest, and even without his admission of untimeliness, he
neither alleges a fact nor presents supporting evidence to show the December 3 deadline is
erroneous.

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In his objection to the R&R, Petitioner raises the issue of equitable tolling for the first
time—after the Magistrate Judge concluded that no evidence showed equitable tolling was
warranted. See Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (“[A] petitioner is entitled to
equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely filing.” (internal quotation
marks omitted)); Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000). As noted above, he
argues two extraordinary circumstances justify equitable tolling: that he never knowingly waived
his direct appeal and that he never received notice to file a pro se response to a Johnson brief filed
by his counsel in his PCR appeal. The Magistrate Judge’s conclusion, however, was correct. The
petition makes no mention of extraordinary circumstances, and Petitioner’s response to the motion
for summary judgment provides no argument or evidentiary support for equitable tolling.8
The Court, therefore, is left to rely only on Petitioner’s statements of fact in his objections.
The unsupported statements, however, are insufficient show the existence of a genuine dispute of
material fact.

Without evidence controverting Respondent’s evidence that shows Petitioner

improperly filed his § 2254 petition, dismissal of Petitioner’s petition is appropriate. The Court,
therefore, finds no error in the Magistrate Judge’s recommendation.
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). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that reasonable jurists would find that the court’s
8

The Court notes that a PCR court found that Petitioner was advised of his right to file a direct
appeal and that he “did not want to appeal.” ECF No. 15-6 at 9. Furthermore, as the Magistrate
Judge pointed out in his R&R, Petitioner was sent a letter from the Supreme Court giving him
notice of his right to file a pro se response to his appellate counsel’s Johnson brief. ECF No. 15-8 at
1. Although Petitioner claims in his response that he never received notice, he fails to provide
evidentiary support for his argument.
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assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies
relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural
ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional
right. Slack, 529 U.S. at 484-85. In the instant matter, the court concludes that Petitioner has failed
to make the requisite showing of “the denial of a constitutional right.”
Conclusion
The Court has thoroughly analyzed the entire record, including the § 2254 petition, the
motions, the Magistrate Judge’s R&R, objections to the R&R, and the applicable law. For the
reasons stated above and by the Magistrate Judge, the Court hereby overrules all of Petitioner’s
objections and adopts the Magistrate Judge’s R&R.
IT IS THEREFORE ORDERED that Petitioner’s motion to dismiss without prejudice is
DENIED; that Respondent’s motion for summary judgment is GRANTED; and, therefore, that
Petitioner’s § 2254 petition is DISMISSED with prejudice. All other motions are deemed moot.
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).
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
August 8, 2012
Florence, SC

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