Terry v. Cartledge
Filing
160
ORDER RULING ON REPORT AND RECOMMENDATION adopts 156 Report and Recommendation. Respondents motion for summary judgment 149 is GRANTED and Petitioners § 2254 petition is DISMISSED, with prejudice. A certificate of appealability is DENIED. Signed by Honorable Bruce Howe Hendricks on 3/14/2016. (gpre, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Terrence Dimingo Terry, #307935,
) Civil Action No.: 6:10-2006-BHH
)
Petitioner, )
)
v.
)
OPINION AND ORDER
)
Mr. Leroy Cartledge, Warden of McCormick )
Correctional Institution,
)
)
Respondent. )
__________________________________ )
Petitioner Terrence Dimingo Terry, (“Petitioner”), proceeding pro se, filed this
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the action was
referred to United States Magistrate Judge Kevin McDonald, for pretrial handling and a
Report
and
Recommendation
(“Report”).
Judge
McDonald
recommends
that
Respondent’s motion for summary judgment be granted and Petitioner’s § 2254 petition
be dismissed, with prejudice. (ECF No. 156.) The Report sets forth in detail the relevant
facts and standards of law on this matter and the Court incorporates them without
recitation.
BACKGROUND
Petitioner filed this action against Respondent on July 28, 2010,1 alleging, inter
alia, ineffective assistance of trial counsel. On January 26, 2016, the Magistrate Judge
issued a Report; and on February 19, 2016, Petitioner filed his Objections. (ECF No.
1
This filing date reflects the date the petition was received by the McCormick Correctional Institution
mailroom. (ECF No.1-3.) Houston v. Lack, 487 U.S. 266 (1988) (holding prisoner's pleading is considered
filed when given to prison authorities for forwarding to the district court).
158.) The Court has reviewed the objections, but finds them to be without merit.
Therefore, it will enter judgment accordingly. 2
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the court. The
recommendation has no presumptive weight. The responsibility to make a final
determination remains with the court. 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, and the court may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate
Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). However, the
court need not conduct a de novo review when a party makes only “general and
conclusory objections that do not direct the court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate Judge's
conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
In reviewing these pleadings, the Court is mindful of the petitioner’s pro se status.
When dealing with a pro se litigant, the Court is charged with liberal construction of the
pleadings. See, e.g., De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The
requirement of a liberal construction does not mean, however, that the Court can ignore
a petitioner’s clear failure to allege facts that set forth a cognizable claim, or that the
2
As always, the Court says only what is necessary to address Petitioner’s objections against the already
meaningful backdrop of a thorough Report of the Magistrate Judge, incorporated entirely by specific
reference, herein, to the degree not inconsistent. Exhaustive recitation of law and fact exists there.
2
Court must assume the existence of a genuine issue of material fact where none exists.
See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).
DISCUSSION
As noted above, Petitioner filed objections to the Magistrate Judge's Report
which the Court has carefully reviewed. Petitioner devotes the first thirty pages of his
fifty-page filing3 to “assessments and corrections of the factual data in the segments”—
i.e., the procedural history as summarized by the Magistrate Judge. (ECF No. 158 at 1.)
To the extent this portion of Petitioner’s filing raises specific objections, the Court has
conducted a thorough de novo review. The Court, however, finds no error in the
Magistrate Judge’s summation of the procedural history. The procedural posture of this
case is admittedly complex, and the Magistrate Judge took great care to explain in
detail Petitioner’s actions in both state and federal court—specifically, Petitioner’s first
action for PCR relief and the State’s appeal of that decision, Petitioner’s first federal
habeas petition, Petitioner’s second action for PCR relief and his appeal of that
decision, and the amended federal habeas petition that is now before this Court. (ECF
No. 156 at 1–20.)
A stated by the Magistrate Judge, Petitioner raised a number of claims in his first
PCR application, which he filed on November 11, 2005. (ECF No. 148-1 at 21–27.) The
PCR court found all of the claims to be without merit except for the allegation that
Petitioner was not advised as to the meaning of sexual battery prior to pleading guilty to
two counts of Lewd Act Upon a Child and one count of Criminal Sexual Conduct with a
Minor—the PCR court granted Petitioner’s motion for PCR on this basis. (Id. at 147–48.)
3
Petitioner also attaches 120 pages of documents to his objections. (ECF No. 158.)
3
The State then filed a motion to alter or amend the final order, (Id. at 151–53), and
Petitioner also filed a pro se motion for reconsideration. However, because Petitioner
was represented by counsel at this time, his pro se motion was found to be ineffective
and void. (ECF No. 148-1 at 165–66) See Foster v. State, 379 S.E.2d 907, 907 (S.C.
1989) (finding that South Carolina courts do not allow “hybrid representation, that is,
representation which is partially pro se and partially by counsel,” and instructing Clerk of
Court to return document submitted by petitioner because she was “represented by
counsel in th[e] post-conviction matter pending before the Court”). The PCR court
denied the State’s motion to amend on July 2, 2007. (Id. at 165–66.) The South
Carolina Supreme Court then reversed the decision of the PCR judge after the State
filed an appeal, finding that plea counsel’s deficient performance was cured by the plea
colloquy even though there was no specific discussion of the term sexual battery. (Id. at
225–26.)
On April 16, 2008, Petitioner filed a pro se motion to remove counsel for selfrepresentation (ECF No. 64-29), which the South Carolina Supreme Court denied on
June 2, 2008 (ECF No. 148-3 at 61). The Magistrate Judge did not mention this motion
and its subsequent denial in the Report. However, he did not need to because the
denied motion had no ultimate bearing on Petitioner’s grounds for relief. Petitioner’s
claim here that appellate representation was “forced upon him[]” is without merit. (ECF
No. 158 at 6.) There is no federal or state constitutional right to proceed pro se in an
appeal from a criminal conviction.4 See State v. Roberts, 614 S.E.2d 626, 629 (S.C.
2005) (“Appellant clearly does not have a federal constitutional right to proceed pro se
4
For the same reason, to the extent Petitioner argues that that the denial of his motion to remove counsel
entitles him to equitable tolling, such an argument is without merit. See State, 614 S.E.2d at 629.
4
in this appeal from his criminal conviction. We also find there is no state constitutional
provision which confers such a right.”). Thus, the South Carolina Supreme Court
appropriately exercised its discretion in denying Petitioner’s motion to remove counsel.
Id. (“[T]he Court may, in its discretion, allow an appellant to proceed pro se in an appeal
from a criminal conviction.”).
Petitioner filed a federal habeas petition on July 28, 2010. (ECF No. 148-1 at
228.) The Magistrate Judge exhaustively detailed the grounds for relief raised in the
petition, explaining that there were originally three separate petitions, which the Court
combined as one by order. (ECF No. 156 at 9–14.) Respondent filed a motion for
summary judgment, which the Court dismissed without prejudice and with leave to refile after Petitioner had exhausted his state remedies and filed an amended petition.
(ECF No. 79 at 9.) The Court also stayed the current case pending exhaustion. (Id.)
Petitioner then filed a second PCR application on February 20, 2012. (ECF No.
148-4 at 2.) The PCR court found that all of the claims except for Petitioner’s Austin
claim5 must be dismissed for failure to comply with the one year state statute of
limitations. (ECF No. 148-5 at 58.) See S.C. Code Ann. § 17-27-45 (“An application for
relief filed pursuant to this chapter must be filed within one year after the entry of a
judgment of conviction or within one year after the sending of the remittitur to the lower
court from an appeal or the filing of the final decision upon an appeal, whichever is
later.”). Petitioner pled guilty to the offenses he challenged in his PCR actions on March
5
Petitioner alleges ineffective assistance of PCR counsel for failing to file a notice of appeal following the
March 2007 order granting Petitioner’s first PCR application. “Under Austin [v. State, 409 S.E.2d 395
(S.C. 1991)], a defendant can appeal a denial of a PCR application after the statute of limitations has
expired if the defendant either requested and was denied an opportunity to seek appellate review, or did
not knowingly and intelligently waive the right to appeal.” Odom v. State, 523 S.E.2d 753, 755 (S.C.
1999); see also King v. State, 417 S.E.2d 868 (S.C. 1992) (explaining the appellate procedure in an
Austin matter).
5
8, 2005. Pursuant to S.C. Code Ann. § 17-27-45, the state statute of limitations began
to run on this date. Because Petitioner did not file his second PCR action until over six
years later on February 20, 2012, the second PCR application was not timely filed. As a
result, the PCR court found that it was not a properly filed application for state postconviction relief and dismissed all of the claims other than the Austin claim as untimely.
(ECF No. 148-5 at 58–59.) The PCR court then discussed the evidence relevant to
Petitioner’s Austin claim and found that Petitioner did not demonstrate that his PCR
counsel was deficient for not filing the notice of appeal in the first PCR action. (Id. at 60–
61.) The PCR court therefore denied the second PCR application and dismissed the
action with prejudice. (Id. at 62.) The South Carolina Supreme Court denied the petition
for a writ of certiorari and the remittitur was issued on June 22, 2015. (ECF No. 148-10;
148-11.)
Petitioner filed his amended habeas petition on July 24, 2015, setting forth the
same grounds raised in his original habeas petition. (ECF No. 137.) Respondent then
filed another motion for summary judgment, (ECF No. 149), which the Magistrate Judge
granted in the instant Report.
After correctly summarizing the procedural history, the Magistrate Judge found
that Petitioner’s petition was not timely filed under 28 U.S.C. § 2244(d). (ECF No. 156 at
24.) As stated in the Report, Petitioner’s conviction became final on March 18, 2005, ten
days after entering his guilty plea. (Id.) The one-year statute of limitations therefore
began to run on March 19, 2005, and was tolled from the filing of Petitioner’s first PCR
application on November 11, 2005, until September 14, 2009, when the South Carolina
6
Supreme Court issued the remitter in Petitioner’s first PCR appeal. Thus, after
accounting for the statutory tolling period, Petitioner had until January 21, 2010 to file
his federal habeas petition. Petitioner did not file his first § 2254 petition until July 28,
2010, and the Magistrate Judge therefore correctly found that the petition was untimely.
The statute of limitations was not further tolled by Petitioner filing his second PCR
application on February 20, 2012, because by that time the one-year limitations period
had already expired. The Magistrate Judge then determined that Petitioner’s untimely
filing should not be excused by equitable tolling and granted Respondent’s motion for
summary judgment. (Id. at 26–27.)
Here, Petitioner first objects that the Report’s findings conflict with the Order
issued by the Honorable Joseph F. Anderson, Jr., on September 30, 2011, quoting the
portion of the Order holding that “[t]he Report and Recommendation will also be held in
abeyance pending the plaintiff’s exhaustion of certain claims.” (ECF Nos. 158 at 33; 79
at 9.) Petitioner asserts that this language indicates that “summary judgment was [not
Judge Anderson’s] vision for this case.” (ECF No. 158 at 38.) Relatedly, Petitioner also
objects that the 2011 Order served to toll the applicable statute of limitations, arguing
that “when the Federal Court stops its clock under a Rhines6 circumstance, it would
indeed effect the tolling procedures at the state level.” (Id. at 45.)
Petitioner’s argument that the action should continue to be stayed contradicts his
July 24, 2015 Motion to Lift Stay, in which Petitioner asked this Court to “lift the stay and
6
In Rhines v. Weber, 544 U.S. 269, 278 (2005), the United States Supreme Court held that a district
court may stay a habeas proceeding where a petitioner demonstrates “good cause for his failure to
exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics.”
7
abeyance precedent set upon his initial habeas petition.” (ECF No. 138 at 1.) Further,
Petitioner misunderstands the findings of the 2011 Order. The Order instructs that once
all of petitioner’s claims are exhausted, the petitioner shall immediately file
an amended petition in this court and serve a copy upon the respondent.
The petitioner shall carefully and legibly identify only those claims he
wishes to proceed with in this court which have been exhausted and only
those which directly relate to the claims which are now stayed. In other
words, the petitioner may not assert any new claims other than those he
has previously identified in this present petition. At such time, the
respondent may move for summary judgment.
(ECF No. 79 at 9.) Thus, the instant Report aligns with the Order’s instructions—there
is no conflict in this respect.
In addition, contrary to Petitioner’s assertions, the 2011 Order did not serve to toll
the statute of limitations under § 2244(d). Section 2244(d)(2) allows for tolling of 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.” 28 U.S.C.
§ 2244(d)(2). For the reasons explained above, Petitioner’s initial habeas petition was
not timely filed. Under § 2244(d)(2), the 2011 Order had no effect on the timeliness of
the Petition and Petitioner’s ability to toll the statute of limitations. This objection is
therefore overruled.
Petitioner next objects to Respondent’s argument, as stated in the Report, that
although “the petitioner has now exhausted his state PCR remedies following his
second PCR action[,] . . . since the petitioner did not properly exhaust all of the claims
raised in this action, some were procedurally defaulted in state court and are subject to
procedural bars.” (ECF No. 158 at 39; 156 at 23.) Petitioner asserts that Respondent’s
argument indicates that at least some claims are not procedurally defaulted. (ECF No.
8
158 at 39–40.) The Court sympathizes with Petitioner’s confusion—the Magistrate
Judge mentioned this aspect of Respondent’s motion for summary judgment but did not
rely on this argument to dispose of the motion. (ECF No. 156 at 23.) Rather than
engage in an exhaustion analysis, the Magistrate Judge found that all of the claims
were barred by the statute of limitations under § 2244(d). As explained above, this is a
procedural bar separate from the exhaustion requirement.
Finally, Petitioner appears to object that the Court should have reached the
merits of his Austin claim. (ECF No. 158 at 46.) However, as the Magistrate Judge
correctly explained, “a subsequent motion for a belated appeal of a state PCR action
does not retroactively toll the statute back to the filing date of the original PCR.” (ECF
No. 156 at 25 (citing Harris v. Riley, No. 0:14-187, 2015 WL 403202, at *6 (D.S.C. Jan.
30, 2015) (finding second PCR action did not toll federal statute of limitations as it was
filed after the expiration of time period despite grant of Austin appeal); Clayton v.
Bryant, No. 8:12-cv-878, 2013 WL 1187030, at *3 (D.S.C. March 20, 2013) (same);
Hepburn v. Eagleton, No. 6:11-2016, 2012 WL 4051126, at *2–3 (D.S.C. Sept. 13,
2012) (same))).) Thus, because the § 2244(d) statute of limitations had already expired
by the time Petitioner filed his second PCR action, the Austin claim asserted in the
second PCR action did not toll the statute of limitations. The Magistrate Judge therefore
correctly found that the claim was procedurally barred as untimely filed, making any
discussion of the merits unnecessary.
Petitioner’s remaining objections are only conclusory statements, meritless
contentions, and arguments that the Magistrate Judge has already considered and
9
rejected. Thus, the Court is tasked only with review of the Magistrate Judge’s
conclusions for clear error. Because the Court agrees with the cogent analysis by the
Magistrate Judge, it need not discuss those same issues for a second time here.
Therefore, the Court will overrule Petitioner’s remaining objections.
CONCLUSION
For the reasons stated above and by the Magistrate Judge, the Court overrules
Petitioner’s objections and adopts and incorporates by reference the Magistrate Judge’s
Report herein. It is therefore ORDERED that Respondent’s motion for summary
judgment (ECF No. 149) is GRANTED and Petitioner’s § 2254 petition is DISMISSED,
with prejudice.
CERTIFICATE OF APPEALABILITY
The governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issue
or issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable
jurists would find this Court’s assessment of his constitutional claims is debatable or
wrong and that any dispositive procedural ruling by this Court is likewise debatable. See
Miller–El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the legal standard
for the issuance of a certificate of appealability has not been met. Therefore, a
certificate of appealability is DENIED.
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IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
March 14, 2016
Greenville, South Carolina
*****
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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