Williams v. Reynolds
ORDER RULING ON REPORT AND RECOMMENDATION: The Court ADOPTS the Report and Recommendation (Dkt. No. 42 ) as the Order of the Court, GRANTS Respondent's motion for summary judgment (Dkt. No. 36 ), and DISMISSES the petition 1 . A certificate of appealability is DENIED. Signed by Honorable Richard M Gergel on 03/23/2017. (dsto, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Cory Williams, #314346,
Cecilia Reynolds, Warden,
Civil Action No. 4:16-1503-RMG
ORDER AND OPINION
This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending the petition for habeas relief under 28 U.S.C. § 2254 be dismissed as
untimely. For the reasons set forth below, the Court adopts the Report and Recommendation,
grants Respondent's motion for summary judgment, and dismisses the petition.
On March 15, 2006, petitioner was convicted of armed robbery, kidnapping, and
possession of a firearm during a violent crime and was sentenced to thirty years' imprisonment.
Petitioner's direct appeal was dismissed on November 10, 2008. On May 7, 2009, he first applied
for post-conviction relief ("PCR"), which was denied on October 27,2010. Petitioner alleges he
did not appeal the denial ofhis first PCR application because he was unaware it had been dismissed
and his attorney failed to timely appeal. Petitioner became aware of the dismissal no later than
December 14,2012, because he filed a letter regarding the issue in the court of common pleas. On
September 13,2013, petitioner again applied for post-conviction relief, alleging his counsel for his
first PCR application failed to seek timely appellate review and seeking a review under Austin v.
South Carolina, 409 S.E.2d 395 (1991). That second application was denied; the remittitur was
filed in the lower court on March 14,2016. Petitioner filed the present petition on May 2, 2016.
On September 9, 2016, the Magistrate Judge recommended summary dismissal of the
petition as untimely (Dkt. No. 18), to which Petitioner objected on September 27,2016 (Dkt. No.
20). Petitioner's objections asserted that the limitations period should be equitably tolled because
he had been hospitalized. The Court recommitted the matter to the Magistrate Judge to consider
Petitioner's objections. (Dkt. No. 22.) On March 1,2017, the Magistrate Judge recommended
summary judgment for Respondent. (Dkt. No. 42.) Petitioner has filed no objections.
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261,270-71 (1976). This Court is charged with making
a de novo determination of those portions of the Report and Recommendation to which specific
objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court
may also "receive further evidence or recommit the matter to the magistrate judge with
instructions." Id. Where the plaintiff fails to file any specific objections, "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," see Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted), and this Court is not
required to give any explanation for adopting the recommendation ofthe Magistrate Judge, Camby
v. Davis, 718 F.2d 198 (4th Cir. 1983).
A petition for habeas corpus must be filed within one year of the latest of several triggering
dates given by statute. 28 U.S.C. § 2244(d)(1). The limitations period is tolled during the
pendency ofPCR proceedings. 28 U.S.C. § 2244(d)(2). The limitations period is also equitably
tolled in extraordinary circumstances. Holland v. Florida, 130 S. Ct. 2549, 2560 (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." ld at 2562 (internal quotation marks omitted).
In this case, the record shows three periods of unto lied time: (1) 163 days from November
25, 2008 (date Petitioner's conviction became final) to May 7, 2009 (filing of first PCR
application; (2) 1022 days from November 26, 2010 (date appeal period lapsed for denial of first
PCR application) to September 13,2013 (filing date of second PCR application); and (3) 49 days
from March 14,2016 (date the South Carolina Supreme Court's remittitur was filed in lower court)
to May 2,2016 (filing date for present petition). (See Dkt. No. 18 at 4-5 (calculating accrual dates
and tolling periods regarding the present petition).) The petition therefore is untimely by 869 days.
Petitioner argues that time should be equitably tolled for two reasons: (l) his attorney
allegedly failed to appeal the denial of the PCR application or to notify Petitioner of the denial,
which Petitioner allegedly learned of on December 14, 2012, and (2) he was hospitalized for most
ofthe period from December 2012 to September 2013. (See Dkt. No. 20.) But, even if Petitioner's
assertions are assumed true, he fails to show extraordinary circumstances justifying equitable
tolling for a period exceeding two years.
Attorney failures generally are not extraordinary
circumstances justifying equitable tolling. See, e.g., Harris v. Hutchinson, 209 F.3d 325, 330-31
(4th Cir. 2000) (holding mistake by counsel regarding calculation of the limitations period does
not justify equitable tolling); McHoney v. South Carolina, 518 F. Supp. 2d 700, 706 (D.S.C. 2007)
(holding counsel's mistaken failure to file a timely notice of appeal does not justify equitable
tolling). Petitioner cannot toll 749 days from the limitations period (November 26, 2010 to
December 14,2012) simply by claiming he was not speaking with his attorney. Thus, even if the
Court were to toll the limitations period for the claimed hospitalization period of December 2012
to September 2013, the present petition would be untimely by well over a year.
For the foregoing reasons, the Court ADOPTS the Report and Recommendation (Dkt. No.
42) as the Order of the Court, GRANTS Respondent's motion for summary judgment (Dkt. No.
36), and DISMISSES the petition (Dkt. No.1).
Certificate of Appealability
The governing law provides that:
(c)(2) A certificate of appealability may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability ... shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable
jurists would find this court's assessment of his constitutional claims debatable or wrong and that
any dispositive procedural ruling by the district court is likewise debatable. 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 this case, the legal standard for the issuance of a certificate
of appealability has not been met. Therefore, a certificate of appealability is DENIED.
AND IT IS SO ORDERED.
United States District Court Judge
Charleston, South Carolina
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