Gamble v. State of South Carolina

Filing 46

ORDER RULING ON REPORT AND RECOMMENDATION: IT IS ORDERED that the Report, ECF No. 38 , is ACCEPTED, and the Petitioner's Objections, ECF No. 40 , are OVERRULED. and the Petition, ECF No. 1 , is hereby DISMISSED. The Court concludes that it is not appropriate to issue a certificate of appealability as to the issues raised herein. Signed by Honorable Terry L Wooten on 01/17/2023. (dsto, )

4:22-cv-02353-TLW

Date Filed 01/17/23

Entry Number 46

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Charles Gamble, #344626,

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PETITIONER,
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vs.
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Warden, Evans Correctional
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Institution,
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RESPONDENT.
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____________________________________)

Case No. 4:22-cv2353-TLW

Order

Petitioner Charles Gamble (“Petitioner”), a state prisoner, proceeding pro se
and in forma pauperis, filed this pro se habeas petition pursuant to 28 U.S.C. § 2254
on July 21, 2022. ECF No. 1. This matter is before the Court for review of the Report
and Recommendation (“Report”) filed by United States Magistrate Judge Thomas E.
Rogers, III, to whom this case was assigned pursuant to 28 U.S.C. § 636(b)(1)(B) and
Local Civ. Rule 73.02(B)(2)(c), (D.S.C.). ECF No. 38. In the Report, the magistrate
judge recommends that this Court summarily dismiss the petition. Id. Petitioner
filed objections to the Report on December 22, 2022, ECF No. 40. Accordingly, this
matter is now ripe for disposition.
RELEVANT BACKGROUND
On January 19, 2011, Petitioner pled guilty in state court to three counts of
murder, one count of use of weapon during the commission of a violent crime, and
first-degree murder. ECF No. 38 at 1. Initially, Petitioner did not file a direct appeal.

Id. Several months later, Petitioner filed his first post-conviction relief (“PCR”)
proceeding on May 13, 2011. Id. It was dismissed, Petitioner appealed, and remittitur
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from the South Carolina Supreme Court was issued on June 25, 2014. Id. Petitioner
then filed a second PCR in 2019 and a third PCR in August of 2022. As the magistrate
judge recognized, these PCRs did not toll the running of AEDPA’s one year statute of
limitations. 1 Id. Petitioner filed the instant § 2254 petition on July 21, 2022. ECF No.
1. As noted by the magistrate judge, “the petition in this case is woefully untimely”
because “[t[here are over 2,000 days of untolled time.” ECF No. 38 at 2. In order to
address Petitioner’s severe untimeliness, the magistrate judge issued two orders
directing Petitioner to provide the following facts:
Upon initial review of the Petition, it appears from the face of the
Petition that this case may be untimely filed. This order is notice to
Petitioner that the court is considering dismissal of his case based on
the running of the one-year statute of limitations. Unless the petitioner
provides facts casting doubt on the issue of untimeliness of his Petition
and thereby prevent dismissal based on the limitations bar, this case
1

The AEDPA, 28 U.S.C. 2244(d) provides:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The limitation
period shall 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 State action
in violation of the Constitution or laws of the United States is removed, if the applicant
was prevented from filing by such State 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.
(2) The 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.

28 U.S.C. 2244(d).

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may be subject to dismissal. Accordingly, Petitioner is granted twentyone (21) days to file a factual explanation with this court to show cause
why his Petition should not be dismissed based on the application of the
one-year limitation period established by 28 U.S.C. § 2244(d), including
but not limited to, factual dispute regarding the relevant dates of filings
in state court mentioned and/or facts supporting the application of
equitable tolling. See Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003).
ECF Nos. 23 & 26 (emphasis in original). Petitioner has not filed anything responsive
to either of these orders to show cause as to why his petition should not be dismissed
based on the one-year statute of limitations.
Accordingly, the magistrate judge issued the instant report which recommends
that the petition be summarily dismissed. This recommendation is based on the fact
that (1) the petition is time-barred, and (2) Petitioner has not pled facts entitling the
equitable tolling of the statute of limitations. ECF No. 38 at 2–6. In response,
Petitioner filed objections—none of which dispute the magistrate judge’s conclusions.
ECF No. 40.
STANDARD OF REVIEW
The Court is charged with conducting a de novo review of any portion of the
Magistrate Judge’s Report and Recommendation to which a specific objection is
registered, and may accept, reject, or modify, in whole or in part, the
recommendations contained in that report. 28 U.S.C. § 636. In conducting its review,
the Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to
which any party may file written objections . . . . The Court is not bound
by the recommendation of the magistrate judge but, instead, retains
responsibility for the final determination. The Court is required to make
a de novo determination of those portions of the report or specified
findings or recommendation as to which an objection is made. However,
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the Court is not required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate judge as to
those portions of the report and recommendation to which no objections
are addressed. While the level of scrutiny entailed by the Court’s review
of the Report thus depends on whether or not objections have been filed,
in either case, the Court is free, after review, to accept, reject, or modify
any of the magistrate judge’s findings or recommendations.

Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992)
(citations omitted).
ANALYSIS
The Court has carefully reviewed the Report and Petitioner’s asserted
objections thereto in accordance with Wallace, and it concludes that the magistrate
judge accurately summarizes the case and the applicable law in detail and sets forth
a detailed analysis of the relevant issues, namely the petition’s untimeliness.
Petitioner’s objections do not address either the substance of the magistrate judge’s
two prior orders or the merits of the Report. Furthermore, they do not contest the
Report’s conclusion that the petition is time barred, nor do they assert a basis for the
equitable tolling of the statute of limitations. This Court notes the Report specifically
addresses the magistrate judge’s conclusion that “the Petitioner has several years of
untolled time.” ECF No. 38 at 4. The Report specifically cites to “104 days” and “over
2,941 days” of untolled time. Id. In his objections, ECF No. 40, Petitioner does not
specifically address this period of untolled time. The petition provides no basis for
equitable tolling. Therefore, after careful consideration, IT IS ORDERED that the
Report, ECF No. 38, is ACCEPTED, and the Petitioner’s Objections, ECF No. 40, are
OVERRULED. and the Petition, ECF No. 1, is hereby DISMISSED.
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The Court has reviewed this petition in accordance with Rule 11 of the Rules
Governing § 2254 Proceedings. The Court concludes that it is not appropriate to issue
a certificate of appealability as to the issues raised herein. Petitioner is advised that
he may seek a certificate from the Fourth Circuit Court of Appeals under Rule 22 of
the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.

s/ Terry L. Wooten

Terry L. Wooten
Chief United States District Judge
January 17, 2023
Columbia, South Carolina

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