Green v. Reynolds

Filing 41

ORDER: The Court DENIES AS MOOT Petitioner's motion to reconsider (Dkt. No. 40 ). AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 8/16/2016. (mcot, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Henry Green,
Petitioner,

v.
Cecilia Reynolds, Warden,
Defendant.

Civil Action No. 5:15-4867-RMG

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ORDER

Before the Court is Petitioner's motion for reconsideration of the Order adopting the
Magistrate Judge's recommendation that his petition for habeas reliefbe dismissed. (Dkt. No. 40.)
On July 29, 2016, the Court adopted the Report and Recommendation of the Magistrate Judge,
recommending that the petition be dismissed because it was untimely filed by almost seven years.
(Dkt. No. 32.) On August 1, 2016, Petitioner mailed untimely objections to the Report and
Recommendation. (Dkt. No. 35.) The Court construed those untimely objections as a motion to
reconsider the order adopting the Report and Recommendation, and denied the constructive
motion. (Dkt. No. 36.) Petitioner's present motion for reconsideration admits that his objections
were untimely under the prison mailbox rule, but asserts that he was unable to timely mail his
objections because his prison was locked down for several days in July. (Dkt. No. 40 at 1-2.)
The Court accepts Petitioner's explanation for the untimely mailing of his objections
insofar as the Court will not penalize him for mailing his objections four days after the deadline.
The Court did not deny his objections, construed as a motion for reconsideration, because they
were untimely. The Court rejected Petitioner's objections on their merits, for the reasons explained
its Order of August 4,2016:

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Petitioner simply repeats his argument that the habeas limitations period should be
equitably tolled because his attorney, Tara Shurling, misled him into thinking that
she was going to file a petition for rehearing on his behalf with the South Carolina
Supreme Court. The Magistrate Judge, after review of correspondence between
Ms. Shurling and Petitioner, found no merit in that argument, and the Court agreed
with the Magistrate Judge's determination. As Petitioner brings no new evidence
or argument to the Court's attention, his constructive motion for reconsideration is
DENIED."
(Dkt. No. 36 at 2-3 (citation omitted).)
Petitioner's present motion for reconsideration only asks that the Court consider his
objections to the Report and Recommendation on their merits, despite their untimely mailing.
(Dkt. No. 40 at 2.) Because the Court has already done so, the Court DENIES AS MOOT
Petitioner's motion to reconsider (Dkt. No. 40).
AND IT IS SO ORDERED.

JI:"

2016
August
Charleston, South Carolina

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