Paugh v. Reynolds

Filing 41

ORDER RULING ON REPORT AND RECOMMENDATION: The court adopts Magistrate Judge West's Report and Recommendation 37 and incorporates it herein. It is therefore ORDERED that Respondent's motion for summary judgment, docket number 25 , is granted and the petition, docket number 1 , is denied. It is further ORDERED that a certificate of appealability is denied. Signed by Honorable Henry M Herlong, Jr. on 11/30/2017. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Joseph Paugh, #343216,
Petitioner,
vs.
Cecilia Reynolds,
Respondent.

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C.A. No. 5:17-0381-HMH-KDW
OPINION & ORDER

This matter is before the court with the Report and Recommendation of United States
Magistrate Judge Kaymani D. West, made in accordance with 28 U.S.C. § 636(b) and Local Civil
Rule 73.02 of the District of South Carolina.1 Joseph Paugh (“Paugh”) is a pro se state prisoner
seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. In her Report and Recommendation,
Magistrate Judge West recommends granting Respondent’s motion for summary judgment and
denying Paugh’s petition because the petition is untimely and he has failed to demonstrate
grounds for equitable tolling.
Paugh 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.

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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) (2006).
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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, the court finds that many of Paugh’s objections are non-specific, unrelated
to the dispositive portions of the magistrate judge’s Report and Recommendation, or merely
restate his claims. However, the court was able to glean one specific objection. Paugh objects
that the magistrate judge erred in finding that the one-year statute of limitations period tolled
when Paugh filed his PCR application on November 13, 2013. (R&R 13, ECF No. 37.) Paugh
contends that he filed his PCR application on April 8, 2013, but the clerk did not submit the
application until November 13, 2013, because the application to proceed without payment of
costs and affidavit in support thereof were not attached. (Objs. 2, ECF No. 39.)
Paugh’s objection is without merit. Pursuant to 28 U.S.C. § 2244(d)(2), to toll the
one-year statute of limitations for filing of federal habeas claims, Paugh’s PCR application must
have been “properly filed.” Pettinato v. Eagleton, 466 F. Supp. 2d 641, 647 (D.S.C. 2006).
[A]n application is ‘properly filed’ when its delivery and acceptance are in
compliance with the applicable laws and rules governing filings. These usually
prescribe, for example, the form of the document, the time limits upon its
delivery, the court and office in which it must be lodged, and the requisite filing
fee.
Artuz v. Bennett, 531 U.S. 4, 8 (2000); see also McSheffrey v. Angelone, No. 98-6519, 1999 WL
89403, at *2 (4th Cir. Feb. 23, 1999) (unpublished) (“A state application is properly filed if it
complies with the state procedural requirements for successive collateral attacks on a conviction,
such as timeliness and proper place of filing.”).

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Paugh’s PCR application was not filed with the requisite filing fee or application to
proceed without payment of costs and affidavit in support thereof. (Objs. 2, ECF No. 39.) Thus,
Paugh’s PCR application was not “properly filed” on April 18, 2013, to toll the one-year statute
of limitations for the filing of his habeas petition claim. Paugh’s PCR application was properly
filed on November 13, 2013. Based on the foregoing, Paugh’s § 2254 petition is untimely.
Therefore, after a thorough review of the magistrate judge’s Report and the record in this case,
the court adopts Magistrate Judge West’s Report and Recommendation and incorporates it
herein.
It is therefore
ORDERED that Respondent’s motion for summary judgment, docket number 25, is
granted and the petition, docket number 1, is denied. It is further
ORDERED that a certificate of appealability is denied because Paugh 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
November 30, 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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