Singley v. Bush

Filing 27

ORDER RULING ON REPORT AND RECOMMENDATION: The court adopts the Report and incorporates it herein. (ECF No. 12 ). It is therefore ORDERED that the Petitioner's petition for a writ of habeas corpus is DISMISSED with prejudice. A certificate of appealability will not be issued. Signed by Honorable Timothy M Cain on 10/16/2017. (dsto, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Ferris Geiger Singley,

)
)
Petitioner,
)
)
vs.
)
)
Warden Dennis Bush,
)
)
Respondent.
)
____________________________________)

C/A No. 4:17-1403-TMC-TER

ORDER

I.
INTRODUCTION
Petitioner Ferris Geiger Singley (Petitioner), a state prisoner incarcerated at Broad River
Correctional Institution (BRCI) and proceeding pro se, filed this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 on May 26, 2017. (ECF No. 1). In accordance with 28
U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., all pretrial proceedings were referred
to a magistrate judge. On June 27, 2017, the United States Magistrate Judge filed a Report and
Recommendation (Report) recommending that this court summarily dismiss the § 2254 petition
with prejudice and without requiring the respondent to file a return because the petition was
untimely under the Anti-Terrorism and Effective Death Penalty Act of 1996. (ECF No. 12).
Petitioner was given notice of his right to file objections to the Report. (ECF No. 12 at 7).
Petitioner filed objections. (ECF No. 24).
II.
FACTS AND PROCEDURAL HISTORY
Petitioner is currently incarcerated at BRCI. His incarceration stems from his May 2006
conviction for first-degree burglary and armed robbery. (ECF No. 1 at 1). The South Carolina
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Court of Appeals affirmed this conviction on May 6, 2009. Id. at 2. The South Carolina Supreme
Court granted certiorari, and it affirmed the conviction on April 4, 2011. Id. The Remittitur was
issued on April 20, 2011, and received on April 21, 2011. (ECF No. 1-2 at 2). Petitioner then
filed his first Post-Conviction Relief (PCR) application on June 10, 2011. Id. In this application,
Petitioner alleged the following grounds for relief: (1) ineffective assistance of counsel; (2)
ineffective assistance of appellate counsel because due date of petition for rehearing was not
calendared and the deadline passed; and (3) due process violations and conflicts of interest due to
Judge McMahon’s daughter working for the solicitor’s office and because Petitioner’s public
defender was previously an advocate for female victims. Id. The Honorable Deadra L. Jefferson
denied and dismissed Petitioner’s PCR application on October 14, 2014, and the South Carolina
Supreme Court denied certiorari on April 15, 2014. Id. Remittitur was issued on May 3, 2016,
and was received on May 5, 2016. Id. On July 15, 2016, Petitioner filed a second application for
PCR alleging essentially the same grounds raised in this petition, namely ineffective assistance
of trial counsel and ineffective assistance of PCR counsel. (ECF No. 1-2). His second PCR
application was dismissed on November 15, 2016, for failure to file within the time mandated by
statute and for being successive. Id.
Petitioner then filed this petition for a writ of habeas corpus on May 26, 2017. (ECF No.
1). He alleges fourteen grounds in his petition, all essentially alleging ineffective assistance of
trial, appellate, or PCR counsel: (1) that his PCR and appellant counsel were ineffective; (2) that
Judge Jefferson was “unprofessional and ruled with her personal feelings” at Petitioner’s PCR
hearing; (3) that his trial counsel was ineffective; (4) that the mention of Petitioner’s prior
criminal record at trial was inappropriate; (5) that his trial counsel gave ineffective advice; (6)
that the determination of the Court of Appeals and Supreme Court was wrong because Petitioner

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had ownership in the home he was convicted of burglarizing; (7) that trial counsel’s use of
objections regarding handwritten note was ineffective; (8) that trial counsel was ineffective for
not asking Judge McMahon to recuse himself from trial and that Judge McMahon was wrong to
not recuse himself; (9) that counsel should have asked for victim’s taxi records to impeach her at
trial; (10) that his PCR counsel did not ask the court to sequester witnesses at his PCR hearing;
(11) that trial witnesses were used ineffectively; (12) that appellate counsel was ineffective in
missing the date to petition the Supreme Court for a rehearing and that PCR counsel was
ineffective in refusing to argue this ground at PCR hearing; (13) that it was an ethical violation
for the PCR judge to correct Assistant Attorney General’s statement of “you should deny the
application for PCR without prejudice” to say “with prejudice” instead; and (14) that it was
improper for him to not be allowed to attend the hearing in January 2014 in which his appointed
counsel was relieved due to concerns for her safety. (ECF No. 1-1).
After reviewing the record, the magistrate judge filed the Report recommending that the
petition be dismissed because Petitioner failed to timely file the petition within the one-year
statute of limitations as provided for by the Anti-Terrorism and Effective Death Penalty Act of
1996 (AEDPA). (ECF No. 12). Petitioner filed objections to the Report. (ECF No. 24).
III.
STANDARD OF REVIEW
The magistrate judge filed the Report in accordance with 28 U.S.C. § 636(b) and Local
Civil Rule 73.02(B)(2) for the District of South Carolina. The recommendations set forth in the
Report have no presumptive weight, and this court remains responsible for making a final
determination in this matter. See Matthews v. Weber, 423 U.S. 261, 270–71 (1976). The court is
charged with making a de novo determination of those portions of a magistrate judge’s report to

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which a specific objection is made, and the court may accept, reject, 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). However, the court need not conduct a de novo review when a party makes only
“general and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Cir. 1982). In the absence of a timely filed, specific objection, the magistrate judge’s conclusions
are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005).
IV.
LAW AND ANALYSIS
The Petitioner is a pro se litigant, and as such, his pleadings are construed liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Petitioner filed this habeas petition after the
effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), and,
therefore, review of his claims are governed by 28 U.S.C. § 2254. Lindh v. Murphy, 521 U.S.
320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). A one-year statute of limitations
governing § 2254 habeas petitions is provided for in 28 U.S.C. § 2244(d). This provision states
in pertinent part that the one-year statute of limitations begins to run at “the date on which the
judgment became final by the conclusion of direct review or expiration of time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A) (2012). However, “[t]he time during which a properly filed
application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of limitation under this
subsection.” Id. at § 2244(d)(2) (emphasis added).

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This statute of limitations is an affirmative defense that ordinarily the “state bears the
burden of asserting.” Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002). However, district courts
have the power to raise this limitations defense sua sponte. Id. at 706. Still, when the petitioner is
a pro se litigant, such as Petitioner here, the district court must give the petitioner notice and an
opportunity to respond as to why the habeas petition is untimely. This notice was provided by the
magistrate judge in the Proper Form Order (ECF No. 6) and in the Report (ECF No. 12).
Petitioner asserted specific facts regarding his inability to file his petition on time in both his
amendments to his petition (ECF No. 1-5) and in his Objections to the Report (ECF No. 24).
These are discussed below.
A. STATUTORY TOLLING UNDER AEDPA
On April 21, 2011, after the South Carolina Supreme Court affirmed Petitioner’s
conviction and sent remittitur to the lower court, the Petitioner’s conviction became final. (ECF
No. 12 at 4). Fifty days later, Petitioner filed his first PCR application properly on June 10, 2011.
Id. From the filing of that PCR application to the remittitur being filed in the lower court
following appeal of the denial of his application for PCR on May 6, 2016, the statute of
limitations was tolled. Id. However, the statute of limitations began to run again following the
remittitur being filed in the lower court on May 5, 2016. Id. Three hundred and eighty-three days
later, Petitioner filed this petition for a writ of habeas corpus on May 23, 2017. Id.
Therefore, Petitioner has had at least 433 days of untolled time between the time that his
conviction became final and the filing of this petition. While Petitioner filed a second PCR
application in July of 2016, this did not toll the statute of limitations because it was not properly
filed. The Supreme Court of the United States held that an untimely petition for state postconviction relief is not properly filed within the meaning of 28 U.S.C. § 2244(d)(2). Pace v.

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DiGuglielmo, 544 U.S. 408, 419 (2005). Therefore, untimely applications for PCR do not trigger
the statutory tolling provision. Thus, Petitioner’s second untimely and successive PCR
application did not toll the AEDPA statute of limitations, and absent equitable tolling,
Petitioner’s petition for a writ of habeas corpus is time barred.
B. EQUITABLE TOLLING
However, the United States Supreme Court and the Fourth Circuit Court of Appeals has
held that the AEDPA’s statute of limitations is subject to equitable tolling when appropriate. See
e.g. Holland v. Florida, 560 U.S. 631, 649 (2010); Rouse v. Lee, 339 F.3d 238, 246 (4th Cir.
2003). The Fourth Circuit has made it clear that “any resort to equity must be reserved for those
rare instances where – due to circumstances external to the party’s own conduct – it would be
unconscionable to enforce the limitation period against the party and gross negligence would
result.” Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). Furthermore, in 2010, the
United States Supreme Court considered the issue and held that the statute would be equitably
tolled only if the petitioner shows (1) that he has reasonably pursued his rights and (2) “that some
extraordinary circumstance stood in his way” and prevented him from filing his petition on time.
Holland, 560 U.S. at 649.
Petitioner states that he has “clearly extraordinary circumstances that prevented him from
filing said habeas petition on time” that he contends justifies equitable tolling. (ECF No. 24 at 1).
Petitioner alleges that due to feeling unsafe in the prison, he was forced to “put himself under the
protection of the Folk Nation” (an alleged prison gang) in March of 2015 after being moved to
the Monticello living unit. Id. at 5–6. According to Petitioner, in October of 2015, members of
the Folk Nation forced Petitioner to participate in a cell phone scam under threat of harm, and
because of this he allegedly did not have time to work on his own habeas petition. Id. at 7–11.

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Petitioner states that “up to Oct[ober] 2015, the petitioner had time to do his legal work in
between the tasks he was ordered to do for the Folk Nation.” Id. at 6. Petitioner escaped from the
Folk Nation by asking to be put in protective custody in June 2016. Id. at 12. According to
Petitioner, he remained in BRCI’s protective custody until December 2016 and was then placed
in statewide protective custody at that time. Id. at 13. Plaintiff alleges that when he left his
original cell in June 2016, the members of Folk Nation stole “roughly 65-70% of his paperwork
pertaining to his current convictions,” which affected his ability to file this petition. Id. at 14.
Plaintiff contends that while in protective custody, he requested “assess to his duffle bag so he
could get his legal work and continue his appeal” and that despite an officer promising to get the
bag, it never happened. Id. at 13. Petitioner states he then wrote to the Charleston County Clerk
of Court to “get back the lost paperwork pertaining to his current convictions.” Id. at 14.
Furthermore, Petitioner argues that he had “the most difficult time being able to access the law
computer” while in protective custody and that he had no access to it at all from August 5 to
August 12, 2017, due to the unit being on lockdown. Id. at 16.
This court finds that Petitioner’s claims are not subject to equitable tolling. This court
does not believe that Petitioner’s circumstances have reached the threshold of being
extraordinary circumstances to warrant equitable tolling. See e.g. Jones v. South Carolina, No.
4:05-2424-CMC-TER, 2006 WL 1876543, at *3 (D.S.C. June 30, 2006) (“Other courts
addressing equitable tolling have found that ‘extraordinary circumstances’ are not: having an
inadequate law library, attorney error, claims of actual innocence, reliance on other inmate’s
advice, ignorance of the AEDPA filing deadline, or even (in some instances) petitioner illness.”);
Quezada v. Artuz, No. 98-CV-2593(NG), 2001 WL 1262402 (E.D.N.Y. Oct. 17, 2001) (stating
that petitioner’s claim that legal papers were lost did not justify equitable tolling when

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“petitioner [made] no claim that his papers were intentionally confiscated [by the jail workers],
or that this occurred shortly before the end of the one year time period” of the statute of
limitations and did not show how the papers were necessary to file his petition). See cf. Valverde
v. Stinton, 224 F.3d 120 (2nd Cir. 2000) (stating that “intentional confiscation of a prisoner’s
habeas corpus petition and related legal papers by a corrections officer” near the deadline to file
his petition was an extraordinary circumstance that potentially warranted equitable tolling).
However, even if the Petitioner’s circumstances were “extraordinary” within the meaning of the
requisite standard, Petitioner did not act with reasonable diligence in asserting his rights, and,
therefore causal connection between these acts and their resulting delay in Petitioner’s ability to
file his petition was severed before the statute of limitations ran. Therefore, even if having his
legal materials stolen and his being unable to use the legal computer were “extraordinary
circumstances” beyond Petitioner’s control, these actions did not prevent him from filing on
time.
Whether a petitioner’s exigent extraordinary circumstances prevented his timely filing
depends on if the petitioner can “demonstrate a causal relationship between the extraordinary
circumstances on which the claim for equitable tolling rests and the lateness of the filing.”
Valverde v. Stinson, 224 F.3d 129, 134 (2nd Cir. 2000). The petitioner cannot do this if “acting
with reasonable diligence, [he] could have filed on time notwithstanding the extraordinary
circumstances.” Id. (citing Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96 (1990)). In
addressing this causal connection, courts are “less forgiving in receiving late filings where the
claimant failed to exercise due diligence in preserving his legal rights.” Irwin v. Dept. of
Veterans Affairs, 498 U.S. 89, 96 (1990). In determining whether or not a petitioner acted with
reasonable or due diligence in asserting his rights, courts have looked at the time period between

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when an “extraordinary circumstance” occurred and when the habeas petition was due to see if a
timely filing was still feasible despite the circumstance. See e.g. Valverde, 224 F.3d at 134
(determining that even with due diligence, petitioner may not have been able to file in time when
his papers were confiscated close to the deadline); Fisher v. Johnson, 174 F.3d 710, 715–16 (5th
Cir. 1999) (holding that equitable tolling was not appropriate when petitioner still had over six
months to complete his petition after he returned to his usual quarters from the psychiatric ward).
Here, Petitioner’s materials were allegedly stolen by prisoners between June 23 and June
24 of 2016. (ECF No. 24 at 13–14). As of June 24, 2016, only 100 days of the statute of
limitations had run.1 Therefore, Petitioner had 265 days left within the statute of limitations
period during which he could have timely filed this petition. During this time, Petitioner was able
to file a complete, though untimely and successive, PCR application in state court on July 15,
2016, despite having lost sixty to seventy percent of his legal materials. (ECF No. 1-2). This
PCR application included most, if not essentially all of the claims asserted in the habeas petition.
(ECF No. 1-2 at 3). While Petitioner states that he could not file this habeas petition due to
inability to access his legal records and the legal computer, the fact that he was able to draft the
July 2016 PCR application, which asserts essentially the same claims, suggests that the absence
of his legal records did not prevent him from filing this petition on time. In fact, in reviewing the
record it seems that Petitioner had the information needed to file this petition at the very latest in
July 2016 when he filed his second PCR application. Yet, Petitioner did not file this petition until
May 23, 2017, over 300 days later, and well over the statute of limitations cut-off. Therefore, this
court finds that even if Petitioner circumstances were extraordinary such as to potentially warrant

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Fifty days had run between the date of finality of Petitioner’s conviction (April 21, 2011) and the filing of his first
PCR application (June 10, 2011). Fifty days had run between the date that remittitur was filed in the lower court on
Petitioner’s appeal of the denial of his first PCR application (May 5, 2016) and the date of the alleged stealth of
petitioner’s legal materials (June 24, 2016).

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equitable tolling, these circumstances did not prevent Petitioner from filing a timely habeas
petition. Had Petitioner been reasonably diligent in his preparations, his petition would have
been filed on time.

V.
CONCLUSION
After a thorough review of the Report and the record in this case, the court adopts the
Report and incorporates it herein. (ECF No. 12). It is therefore ORDERED that the Petitioner’s
petition for a writ of habeas corpus is DISMISSED with prejudice.
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 this 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 matter, the court finds that the petitioner 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
Timothy M. Cain
United States District Judge
Anderson, South Carolina
October 16, 2017
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