Brown v. Cartledge

Filing 28

OPINION AND ORDER: The court adopts the Magistrate Judge's 17 Report and Recommendation. It is therefore ORDERED that Brown's § 2254 petition, docket number 1 , is dismissed with prejudice. It is further ORDERED that a certificate of appealability is denied because Brown has failed to make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. Signed by Honorable Henry M Herlong, Jr on 5/3/2017. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Devin Miles Brown,
Petitioner,
vs.
Leroy Cartledge, Warden,
Respondent.

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C.A. No. 5:16-3430-HMH-KDW

OPINION & ORDER

This matter is before the court for review of the Report and Recommendation of United
States Magistrate Judge Kaymani D. West, made in accordance with 28 U.S.C. §§ 636(b)(1),
1915(e), and 1915A and Local Civil Rule 73.02 for the District of South Carolina.1 Devin Miles
Brown (“Brown”) is a state prisoner seeking habeas corpus relief pursuant to 28 U.S.C. § 2254.
In her Report and Recommendation, Magistrate Judge West recommends dismissing Brown’s
petition.2

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The recommendation has no presumptive weight, and the responsibility for making a
final determination remains with the United States District Court. See Mathews v. Weber,
423 U.S. 261, 270 (1976). The court is charged with making a de novo determination of
those portions of the Report and Recommendation to which specific objection is made.
The court may accept, reject, or modify, in whole or in part, the recommendation made by
the magistrate judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
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Section 1915A(a) requires the court to “review . . . as soon as practicable . . . a complaint
in a civil action in which a prisoner seeks redress from a governmental entity . . . .” Upon
review, the court shall dismiss the complaint if it is “frivolous, malicious, or fails to state a
claim upon which relief may be granted.”
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I. FACTUAL AND PROCEDURAL BACKGROUND
Brown is currently incarcerated at the McCormick Correctional Institution, a South
Carolina Department of Corrections (“SCDC”) facility. After a trial, Brown was found guilty of
trafficking marijuana on March 19, 2008. (§ 2254 Pet. 1, ECF No. 1.) Brown was sentenced to
twenty-five years’ imprisonment. (Id., ECF No. 1.) Brown appealed his conviction to the South
Carolina Court of Appeals, which affirmed his conviction in an unpublished opinion dated
June 7, 2011. (Id. at 2, ECF No. 1.) Brown filed a petition for writ of certiorari to the South
Carolina Supreme Court, which was dismissed on October 25, 2011. (Id., ECF No. 1.) On
October 24, 2012, Brown filed an application for post-conviction relief (“PCR”), in the South
Carolina Court of Common Pleas. (Id. at 3, ECF No. 1.) Brown’s PCR application was
dismissed with prejudice on March 13, 2014. (Id., ECF No. 1.) Brown filed a petition of writ
for certiorari to the South Carolina Supreme Court, which was dismissed in an order dated
October 12, 2015. (§ 2254 Pet. 6, ECF No. 1.) The South Carolina Supreme Court issued its
remittitur on October 30, 2015. (R&R 1, ECF No. 17.)
Brown filed this § 2254 petition pro se on October 13, 2016.3 (§ 2254 Pet., ECF No. 1.)
On December 28, 2016, Magistrate Judge West issued an Order to Show Cause why Brown’s
§ 2254 petition should not be dismissed as untimely based upon the one-year statute of
limitations set forth in 28 U.S.C. § 2244(d). (Dec. 28, 2016 Order, ECF No. 11.) Brown
responded on January 11, 2017,4 arguing that, if his petition was untimely, it was because of his
counsel’s erroneous advice. (Resp. Show Cause Order, ECF No. 13.) On March 15, 2017,

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See Houston v. Lack, 487 U.S. 266 (1988).

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See id.
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Magistrate Judge West issued her Report and Recommendation, recommending that Brown’s
petition be dismissed as untimely. (R&R 8-9, ECF No. 17.) Brown, through counsel,5 timely
filed objections on April 18, 2017. (Pet. Objs., ECF No. 26.) This matter is now ripe for
consideration.
II. DISCUSSION OF THE LAW
A. Objections
Brown filed objections to the Report and Recommendation. Objections to the Report
and Recommendation must be specific. Failure to file specific objections constitutes a waiver of
a party’s right to further judicial review, including appellate review, if the recommendation is
accepted by the district judge. See United States v. Schronce, 727 F.2d 91, 94 & n.4 (4th Cir.
1984). In the absence of specific objections to the Report and Recommendation of the
magistrate judge, this court is not required to give any explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Upon review, Brown specifically objects that, although his § 2254 petition was filed
after the expiration of the one-year statute of limitations, the magistrate judge erred in finding
that Brown failed to demonstrate grounds for equitable tolling. (Objs. 4, ECF No. 26.) Brown
argues that equitable tolling is appropriate because his attorney miscalculated the time to file
Brown’s § 2254 petition, he has been reasonably diligent in pursuing his case, and the
circumstances of his underlying conviction justify the application of equitable tolling. (Id.,
generally, ECF No. 26.)

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Brown’s counsel entered an appearance in this case on March 17, 2017.
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“Equitable tolling is appropriate when, but only when, extraordinary circumstances
beyond [the petitioner’s] control prevented him from complying with the statutory time limit.”
Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (internal quotation marks omitted). To prevail
on a claim of equitable tolling, Brown must demonstrate “(1) extraordinary circumstances,
(2) beyond his control or external to his own conduct, (3) that prevented him from filing on
time.” Id.
Brown first argues that, although counsel’s error in interpreting a statute of limitations
does not generally constitute extraordinary circumstances, the facts of this case warrant a finding
of extraordinary circumstances. (Objs. 5-6, ECF No. 26 (citing Harris v. Hutchinson, 209 F.3d
325, 331 (4th Cir. 2000) (“[A] mistake by a party’s counsel in interpreting a statute of
limitations does not present the extraordinary circumstance beyond the party’s control . . . .”);
United States v. Martin, 408 F.3d 1089, 1093-94 (8th Cir. 2005); Spitsyn v. Moore, 345 F.3d
796, 800 (9th Cir. 2003); Baldayaque v. United States, 338 F.3d 145, 152-53 (2d Cir. 2003)).)
The cases cited by Brown in support of his argument, Martin, Moore, and Baldayaque, are
clearly distinguishable from this case. In each of those cases, extraordinary circumstances
existed because counsel had failed to file, or lied about the requirements to file, federal habeas
relief in spite of specific requests from the petitioners. See Martin, 408 F.3d at 1094-95; Moore,
345 F.3d at 801; Baldayaque, 338 F.3d at 152. Here, Brown has made no allegations of such
egregious misconduct. Therefore, the actions of Brown’s counsel do not demonstrate
extraordinary circumstances beyond Brown’s control.
Brown next argues that, although counsel’s miscalculation of the statute of limitations
may not in isolation qualify as extraordinary circumstances, when considered in conjunction
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with the fact that no court has considered the merits of all of his claims, extraordinary
circumstances exist. (Objs. 6-7, ECF No. 6 (citing Schlup v. Delo, 513 U.S. 298, 316 (1995).)
In Schlup, the Supreme Court held that
[w]ithout 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. However, if a petitioner . . . presents evidence of innocence so
strong that a court cannot have confidence in the outcome of the trial unless the
court is also satisfied that the trial was free of nonharmless constitutional error,
the petitioner should be allowed to pass through the gateway and argue the merits
of his underlying claims.
Schlup, 513 U.S. at 316. To meet this standard, Brown must establish actual innocence and that
it is “more likely than not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt.” Id. at 327. “‘[A]ctual innocence’ means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). In determining whether a
party has demonstrated actual innocence, “[t]he habeas court must make its determination
concerning the petitioner’s innocence in light of all the evidence, including that alleged to have
been illegally admitted (but with due regard to any unreliability of it) and evidence tenably
claimed to have been wrongly excluded or to have become available only after the trial.”
Schlup, 513 U.S. at 328 (internal quotation marks omitted).
Here, Brown provides no evidence to support the claim that no reasonable jury would
have found him guilty. Further, the allegations in Brown’s § 2254 petition do not support his
assertion of actual innocence. Based on the foregoing, the magistrate judge did not err in
finding that equitable tolling is not appropriate. As a result, Brown’s objection is without merit.

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Therefore, after a thorough review of the Report and Recommendation and the record in
this case, the court adopts the magistrate judge’s Report and Recommendation.
It is therefore
ORDERED that Brown’s § 2254 petition, docket number 1, is dismissed with prejudice.
It is further
ORDERED that a certificate of appealability is denied because Brown has failed to
make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.

s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
May 3, 2017

NOTICE OF RIGHT TO APPEAL
The Petitioner is hereby notified that he has the right to appeal this order within thirty
(30) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate
Procedure.

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