Frye v. Warden of Broad River Correctional Institution

Filing 54

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION: After a thorough review of the Report and Recommendation and the record in this case, the Court adopts the Report (DE 41 ) and incorporates it here by reference. < /p>It is, therefore, ORDERED that Respondent's Motion for Summary Judgment (DE 50 ) is granted, and the Petition is dismissed. Further, it is ORDERED that a certificate of appealability is denied because Petitioner has failed to make "a substantial showing of the denial of a constitutional right." Signed by Honorable Joseph Dawson, III on 3/12/2025. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Marion Wade Frye,
Petitioner,
vs.
Warden of Broad River Correctional
Institution,
Respondent.

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Case No.: 5:24-cv-1585-JD-KDW

ORDER AND OPINION

This matter is before the Court with the Report and Recommendation
(“Report”) of United States Magistrate Judge Kaymani D. West (DE 41) made in
accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) of the District of
South Carolina regarding Respondent Warden of Broad River Correctional
Institution’s (“Warden” or “Respondent”) Motion for Summary Judgment (DE 20). 1
A. Background
The Report sets forth the relevant facts and legal standards, which the Court
incorporates without a complete recitation. In any event, the Court provides this
summary as a brief background.
Petitioner Marion Wade Frye (“Frye” or “Petitioner”) is incarcerated at the
Tyger River Correctional Institution of the South Carolina Department of Corrections
Facility in the South Carolina Department of Corrections (“SCDC”). In 2018, Frye
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, 270-71 (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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was on trial for murder when he alerted the Court that he wished to enter an Alford
guilty plea for involuntary manslaughter. (App. 556–58.)2 Petitioner was represented
by Assistant Public Defender David Mauldin (“Trial Counsel”). Id. When examined
by the court, Frye at first indicated dissatisfaction with his attorney’s representation
of him. (Id. at 558 – 69.) Petitioner said he wished to proceed with the trial, and the
State proceeded with its case before the jury. (Id. at 569–72.)
After the State presented additional witnesses, Petitioner informed the court
there had been a misunderstanding, and he wished to proceed with his plea. (Id. at
574–98.) The court repeatedly asked Petitioner whether he was satisfied with his
attorney, and Petitioner answered that he was. (Id. at 598–99.) Following additional
examination by the court concerning Petitioner’s satisfaction with his attorney’s
representation and the voluntariness of Petitioner’s decision to enter a plea,
Petitioner entered an Alford guilty plea to voluntary manslaughter, and the court
sentenced him to 22 years imprisonment. (Id. at 600–605, 648–49.)
Petitioner filed a notice of appeal on February 16, 2018 (DE 19-3), and
thereafter filed documents listing legal grounds for his appeal. (DE 19-4, 19-5.) The
South Carolina Court of Appeals dismissed Frye’s appeal on March 30, 2018, for
failure to provide a sufficient explanation to merit the appeal under Rule
203(d)(l)(B)(iv) of the South Carolina Appellate Court Rules (SCACR). (App. 651.)

Citations to “App.” refer to the Appendix for Petitioner’s trial and plea transcript and
Post-Conviction Relief (“PCR”) proceedings, and the page numbers on the top of the page.
That appendix is available at DE 19-1 to 19-2 in this habeas matter.
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Frye then applied for post-conviction relief (“PCR”) on February 15, 2019,
based on ineffective assistance of counsel, due process/prejudice, and prosecutorial
misconduct. (App. 653, 662–63.) After Petitioner filed an amended PCR application
on August 24, 2021 (App. 685–87), an evidentiary hearing was held before a state
court judge on September 1, 2021. (App. 688–771.) Petitioner was present and
represented by Attorney Ashley A. McMahon. (See id.) Petitioner and his Trial
Counsel testified at the hearing. (Id.) On November 15, 2021, the state court
dismissed Petitioner’s PCR application with prejudice. (App. 774–94.)
Petitioner appealed the dismissal of his PCR application. (DE 19-6.) Appellate
Defender Joanna K. Delany, of the South Carolina Commission on Indigent Defense,
Division of Appellate Defense, represented Petitioner on appeal. (DE 19-7.)
Petitioner, through counsel, petitioned for a writ of certiorari in the South Carolina
Supreme Court on August 8, 2022, which was transferred to the South Carolina Court
of Appeals and denied on September 21, 2023 (DE 19-10, 19-11). The Remittitur was
issued on October 12, 2023. (DE 19-12.)
This Petition followed on March 28, 2024. (DE 1.) Petitioner raises these
grounds in his petition:
GROUND ONE: Procedural Default
Supporting Facts: I was not represented by competent counsel at
my direct appeal process. Robert Michael Dudek, Esquire, never
came to see me, nor asked me any questions to my complants of
trial counsel, David M. Mauldin. I only received a letter stating
the attorney’s name. I was forced to explain myself, without
competent counsels, at this stage and was over all dismissed for,
failure to provide a sufficient explanation, (SCACR) Rule
203(d)(1)(B)(iv) of the South Carolina Appellate Court Rules.
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GROUND TWO: Trial Counsels ineffectiveness due to failure to
disclose Rule 5 Motion of Discovery “Evidence” in full, before trial;
Appendix p. 238 line 6-11, After Discovered Evidence.
Supporting facts: 1. PCR’s Exhibit 1 of the autopsy reports. 2) The
evidence of search warrants signed by the Judge of specific dates
of 9-30-15 – 10-2-2015, where not disclosed. 3) missing clothing,
“Evidence,” that I requested to be tested before trial, for GSR, and
was not aware of being missing until after PCR attorney Ashley
McMahon provided additional discovery before PCR hearing.//
Appellate case No. 2021-001406, Appendix p. 773 1.) additional
discovery. Exhibit 1. 3) Appendix p. 767 line 2-20; “Additional
Discovery”
ROUND THREE: Counsel failed to return to crime scene and failed to
investigate conflicting evidence at scene of crime
Supporting facts: State of South Carolina, In the Supreme Court;
Appellate Case No. 2021-001406 Appendix P. 755; line 12-21. This
coincides, goes together with, Appendix p. 773 of bullet trajectory
and ricochete, of conflicting evidence and expert testimony at
trial. Her report was not dated until after the deceased had
already left Dr. Ross’s possession, I believe to be three (3) day
later
Appendix p. 743-744 (24-25) –743, 744:line 1-9
Appendix p. 755, line 12-21; Expert Witness, Reverse Projection
Photogrammetry Analysis.
GROUND FOUR: Counsel failed to call/subpoena witnesses and
experts about conflicting evidence to present at trial, or investigate at
request
Supporting facts: Appendix p. 752, line 10-17, 21-23
Appendix p. 746, line 14-18 – Appendix p. 752: line 10-17 lottery ticket
video and witness who sold and cashed the $500.00 ticket at Village Store
in Lexington Appendix p. 767; line 2-20, Scientific Expert Witness: Gun
Shot Residue; Physicists; Appendix p. 741; line 21-24, witness who wrote
statement; Anthony Boulware Appendix p. 768; line 2-7, Scientific
Expert, blood splatter analyist and serologist Appendix p. 755; line 1225, Scientific Expert, Reverse Projection Photogrammetry analysis
(DE 1 at 5 -11 (errors in original).)

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On June 28, 2024, Respondent moved for summary judgment (DE 20) along
with a return and memorandum (DE 19). On July 1, 2024, under Roseboro, 528 F.2d
309, Petitioner was advised of the motion to dismiss and motion for summary
judgment procedures and the possible consequences if he failed to respond adequately
to Respondent’s motion (DE 21). Petitioner filed a response (DE 25), and Respondent
filed a reply (DE 34). Accordingly, this matter is now ripe for review.
B. Report and Recommendation
On October 16, 2024, the Magistrate Judge issued the Report recommending
that Respondent’s motion for summary judgment (DE 20) be granted. (DE 41.) The
Report recommends dismissing Petitioner’s claims on summary judgment because
the statute of limitations bars Petitioner’s § 2254 Petition. (DE 41.)
The Report sets forth the applicable law. The Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) provides that “[a] 1-year period of limitation
shall apply to an application for writ of habeas corpus by a person in custody pursuant
to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). The AEDPA also provides
that 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

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(D)
the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1)(A)-(D).
The Report also analyzed the timeliness of Frye’s petition, which noted that
Petitioner appealed his conviction by filing a Notice of Appeal that was dismissed by
the Court of Appeals on March 30, 2018, for failure to provide a sufficient explanation
to merit the appeal. (App. 651.) The Report reasoned that because Petitioner did not
petition to reinstate his appeal, Petitioner’s conviction became final on April 17, 2018,
after the time period for petitioning to reinstate had expired. 3 Petitioner’s filing of his
PCR application on February 15, 2019 (App. 653, 662–63), tolled the one-year
limitations period (see 28 U.S.C. § 2244(d)(2)), at which time 304 days had elapsed,
leaving 61 days within which Petitioner could timely file a federal habeas petition.
The statute of limitations remained tolled until, at the very latest, on October
12, 2023, upon the filing of the remittitur in Lexington County from the Court of
Appeals order denying the petition for writ of certiorari. (DE 19-2.) Accordingly, the
statute of limitations expired on December 11, 2023; however, the Report concludes
that Petitioner did not file his habeas action until March 28, 2024, 108 days after the

See Rule 260 (b), SCACR (“Whenever it appears that an appellant or a petitioner has
failed to comply with the requirements of these Rules, the clerk shall issue an order of
dismissal, which shall have the same force and effect as an order of the appellate court. A
case shall not be reinstated except by leave of the court, upon good cause shown, after notice
to all parties. The clerk shall remit the case to the lower court or administrative tribunal in
accordance with Rule 221 unless a motion to reinstate the appeal has been actually received
by the court within fifteen (15) days of filing of the order of dismissal (the day of filing being
excluded).”); Rule 242(c), SCACR (providing that a decision of the Court of Appeals “is not
final for the purpose of review by the Supreme Court until the petition for rehearing or
reinstatement has been acted on by the Court of Appeals.”).
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statute of limitations had run, nor does Petitioner allege, and the record does not
support the finding of, any extraordinary circumstances that merit equitable tolling
of the limitation period.
C. Legal Standard
To be actionable, 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). “The Supreme Court has expressly upheld the validity of such a waiver rule,
explaining that ‘the filing of objections to a magistrate’s report enables the district
judge to focus attention on those issues—factual and legal—that are at the heart of
the parties’ dispute.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(2005) (citing Thomas v. Arn, 474 U.S. 140, 147 (1985) (emphasis added)). 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).
D. Petitioner’s Objection
Frye asserts a single objection to the Report, stating “Petitioner’s Judgment of
conviction . . . became final when Petitioner’s time for seeking review with the State’s
(sic) highest court expired,” which Petitioner alleges was July 17, 2018 (instead of
April 17, 2018), under the holding in Gonzalez, 565 U.S. at151, and therefore, timely.
(DE 44.) Frye does not provide an analysis or show a calculation of the deadline to
file a habeas petition. Nevertheless, even if his date were correct, which the Court
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does not agree, Frye’s March 11, 2023, petition would still be untimely. Accepting
July 17, 2018 (instead of April 17) as the date Petitioner’s conviction became final
would only add an around 91 days (April 17 to July 17, 2018) to the tolled statute of
limitations, which is less than the 108 days by which the petition was untimely filed.
Nor has Petitioner provided grounds for extraordinary circumstances that merit
equitable tolling of the limitation period. Therefore, the Court overrules Petitioner’s
objection.
E. Conclusion
Accordingly, after a thorough review of the Report and Recommendation and
the record in this case, the Court adopts the Report (DE 41) and incorporates it here
by reference.
It is, therefore, ORDERED that Respondent’s Motion for Summary Judgment
(DE 50) is granted, and the Petition is dismissed. Further, it is ORDERED that a
certificate of appealability is denied because Petitioner 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.

Florence, South Carolina
March 12, 2025

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NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order within thirty
(30) days from this date under Rules 3 and 4 of the Federal Rules of Appellate
Procedure.

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