Gleaton v. Bush
Filing
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ORDER RULING ON REPORT AND RECOMMENDATION: the court adopts the Report (ECF No. 31 ), and Respondent's Motion for Summary Judgment (ECF No. 19 ) is GRANTED. Accordingly, the Petition is DISMISSED, and all remaining motions are DENIED as moot. Signed by Honorable Timothy M Cain on 10/31/2014. (mcot, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
William Antonio Gleaton,
Petitioner,
v.
Warden Dennis Bush,
Respondent.
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C/A No. 4:14-890-TMC
OPINION & ORDER
Petitioner William Antonio Gleaton, a state prisoner proceeding pro se, filed this petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b)
and Local Rule 73.02(B)(2), D.S.C., all pre-trial proceedings were referred to a magistrate judge.
On August 25, 2014, Magistrate Judge Thomas E. Rogers, III, filed a Report and
Recommendation (“Report”) recommending that Respondent’s Motion for Summary Judgment
(ECF No. 19) be granted, the petition be dismissed without an evidentiary hearing, and all
remaining outstanding motions be denied as moot. (ECF No. 31).1 Petitioner timely filed
objections to the Report on September 15, 2014. (ECF No. 38).
The Magistrate Judge makes only a recommendation to the court. The Report has no
presumptive weight and the responsibility to make a final determination in this matter remains
with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). In making that
determination, the court is charged with conducting a de novo review of those portions of the
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The court notes that rather than file a response to Respondent’s Summary Judgement
Motion, Petitioner filed a Motion for Judgment on the Pleadings in which he addressed the
issues raised by Respondent in his Summary Judgment Motion. (ECF No. 23).
Report to which either party specifically objects. See 28 U.S.C. § 636(b)(1). Then, the court may
accept, reject, or modify the Report or recommit the matter to the magistrate judge. Id.
Discussion
Petitioner contends that the magistrate judge erred in determining the periods of time
which should be tolled and finding that equitable tolling did not apply. Additionally, Petitioner
contends that the magistrate judge did not address his claims that he is actually innocent and there
was judicial bias towards him in regard to his guilty plea. The court finds Petitioner’s objections
to be without merit.
First, the magistrate judge addressed Petitioner’s claim that he filed a pro se notice of
appeal which entitles him to tolling. (Report at 10). As the magistrate judge noted, Petitioner did
not perfect his appeal. Id. Moreover, the court notes that in his state PCR proceeding, Petitioner
alleged that his trial counsel was ineffective for failing to advise him of his right to appeal and
failing to file an appeal.
Second, the magistrate judge correctly determined that Petitioner was not entitled to
equitable tolling because Petitioner has not demonstrated that some extraordinary circumstances
prevented him from timely filing his federal habeas petition. (Report at 9).
As to the claims Petitioner alleges the magistrate judge did not address, the court notes
these claims are the underlying claims Petitioner raises in this habeas action, which the magistrate
judge found to be barred by the statute of limitations. The Fourth Circuit has stated that once a
claim is determined to be procedurally barred, the court should not consider the issue on its
merits. Kornahrens v. Evatt, 66 F.3d 1350 (4th Cir.1995).
Moreover, to the extent that Petitioner contends that his Petition is timely because he is
actually innocent of the crimes to which he pleaded guilty, the court finds that this argument is
without merit. In McQuiggins v. Perkins,
U.S.
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, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013),
the Supreme Court held that a habeas petitioner who can show actual innocence under the
rigorous standard of Schlup v. Delo, 513 U.S. 298 (1995), is excused from the procedural bar of
the statute of limitations under the miscarriage of justice exception. However, to meet the
McQuiggin's standard, Petitioner must make a convincing showing of actual innocence. To
establish actual innocence, Petitioner must present new evidence showing that “ ‘it is more likely
than not that no reasonable juror would have convicted [Petitioner].’ ” McQuiggin, 133 S.Ct. at
1935 (quoting Schlup, 513 U.S. at 329) (addressing actual innocence as an exception to
procedural default)).
The actual innocence exception, however, cannot apply without new evidence of
innocence. See Schlup, 513 U.S. at 316 (“Without any new evidence of innocence, even the
existence of a concededly meritorious constitutional violation is not in itself sufficient to establish
a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.”);
Reid v. True, 349 F.3d 788, 806 (4th Cir. 2003) (holding that because the Petitioner could provide
“no new evidence at all . . . his assertion of actual innocence fails”). Here, Petitioner has not
offered any new evidence to support an actual innocence claim.
Conclusion
Based on the foregoing, the court adopts the Report (ECF No. 31), and Respondent's
Motion for Summary Judgment (ECF No. 19) is GRANTED. Accordingly, the Petition is
DISMISSED, and all remaining motions are DENIED as moot.
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); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In the instant
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matter, the court finds that Petitioner has failed to make "a substantial showing of the denial of a
constitutional right." Accordingly, the court declines to issue a certificate of appealability.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
October 30, 2014
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