Grant v. Bush et al
Filing
52
ORDER denying 37 Motion for Judgment on the Pleadings; denying 38 Motion for Hearing; adopting Report and Recommendations re 48 Report and Recommendation; granting 23 Motion for Summary Judgment Signed by Honorable David C Norton on 8/11/15.(elim, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
KEVIN L. GRANT, #290062,
Petitioner,
vs.
DENNIS BUSH, Warden of Lee
Correctional Institution,
Respondent.
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No. 6:14-cv-01313-DCN
ORDER
This matter is before the court on United States Magistrate Judge Kevin F.
McDonald’s Report and Recommendation (“R&R”) that this court grant respondent
Dennis Bush’s (“Bush”) motion for summary judgment and deny petitioner Kevin L.
Grant’s (“Grant”) motions for judgment on the pleadings and for an evidentiary hearing.
For the reasons set forth below, the magistrate’s R&R is affirmed, Bush’s motion for
summary judgment is granted, and Grant’s motions for judgment on the pleadings and for
an evidentiary hearing are denied.
I. BACKGROUND
Grant is currently incarcerated at Lee Correctional Institution. A Charleston
County grand jury indicted Grant in November 2005 for use of a firearm during the
commission of a violent crime, see S.C. Code Ann. § 16-23-490, and in February 2006
for murder. Following a jury trial before the Honorable Diedre Jefferson on March 9,
2006, Grant was convicted as charged. Judge Jefferson sentenced Grant to thirty years
imprisonment for murder and a five-year concurrent sentence for the weapons charge.
Grant appealed the court’s judgment.
1
A. Direct Appeal
On December 27, 2007, Grant filed his brief in the South Carolina Court of
Appeals raising the following two issues:
1. The trial judge erred by failing to direct a verdict acquitting Grant of
the charges, since the State’s circumstantial evidence was neither
substantial nor did it reasonably tend to prove that Grant was guilty.
2. The trial judge committed reversible error by allowing into evidence a
statement Grant made only after he was told by the detective who was
interrogating him that “his cooperation could really only benefit him,”
since it was induced by this implied promise and thus involuntary.
Pet’r’s Appeal Br. 3, ECF No. 24-3. The South Carolina Court of Appeals heard oral
arguments on January 8, 2009 and issued an unpublished opinion affirming Grant’s
convictions on February 12, 2009. Grant did not seek a rehearing and review by the
South Carolina Supreme Court; thus, the South Carolina Court of Appeals issued a
remittitur on March 2, 2009.1
B. PCR Application
On March 25, 2010, Grant filed an application for post-conviction relief, in which
he raised the following claims:
1. Was counsel ineffective for failing to object to the prosecution’s
improper closing that used conclusions of evidence that the prosecution
was not qualified to give?
1
Grant was not categorically barred from seeking certiorari review from the South Carolina
Supreme Court. On February 12, 2009, subsequent to the opinion but prior to the remittitur, the South
Carolina Supreme Court barred petitions from matters reviewed pursuant to Anders v. California, 386 U.S.
738 (1967). See State v. Lyles, 673 S.E.2d 811, 812 (S.C. 2009) (“[A]s a matter of policy, we will not
entertain petitions for writs of certiorari to the Court of Appeals where the Court of Appeals has conducted
an Anders review.”). However, Grant’s direct appeal was not submitted pursuant to the Anders process.
Thus, while seeking review was possible, Supreme Court review was not necessary for Grant to exhaust
remedies according to state court precedent. In re Exhaustion of State Remedies in Criminal & PostConviction Relief Cases, 471 S.E.2d 454 (S.C. 1990) (“We therefore declare that in all appeals from
criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for
rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to
have exhausted all available state remedies respecting a claim of error.”).
2
2. Was counsel ineffective for failing to object to the prosecution’s
improper closing argument that misquoted evidence and denied Petitioner
his right to a fair trial?
3. Was counsel ineffective for failing to object to the trial court’s malice
instructions that “failed” to instruct the jury that they could either “accept
or reject” the inference that malice could be inferred from the use of a
deadly weapon that resulted in a mandatory burden shifting instruction?
Pet’r’s PCR Appl. 3, 6, 11, ECF No. 24-2. On June 21, 2010, the state filed its return and
motion to dismiss for failure to file the post-conviction relief application within the oneyear statute of limitations period. See Resp’t’s Return & Mot. to Dismiss 3, ECF No. 242. On September 24, 2010, the Honorable Roger M. Young denied the state’s motion,
reasoning that it was “equitable to toll statute of limitations due to paperwork of applicant
not at facility he was being housed [sic] and his appellate attorney gave him incorrect
advice of appeal date information.” Order 1, ECF No. 24-7.
On November 17, 2012, the Honorable Kristi Harrington held an evidentiary
hearing regarding Grant’s PCR. At the conclusion of the hearing, Judge Harrington left
the record open for receipt of additional testimony. The hearing reconvened on February
28, 2012. At the conclusion of the second hearing, Judge Harrington allowed both sides
to submit proposed orders within ten days. Judge Harrington denied the requested relief
and dismissed Grant’s action by order dated March 12, 2012. See Order of Dismissal,
March 12, 2012, ECF No. 24-2. Grant subsequently appealed the denial of relief.
Grant’s appellate counsel filed a petition for writ of certiorari in the South
Carolina Supreme Court on January 31, 2013 and raised the following issue:
Did the PCR judge err in refusing to grant a new trial based on the after
discovered evidence of witness Cornelius Morrison, a witness unknown at
the time of trial, who testified that he was at the Waffle House on the night
of the shooting, was watching petitioner when shots rang out and
petitioner was not the one who shot the victim?
3
Pet’r’s Pet. for Writ of Cert. 2, ECF No. 24-8. On June 20, 2013, the state filed a return
to the petition. The matter was subsequently transferred to the South Carolina Court of
Appeals. By order dated March 21, 2014, the South Carolina Court of Appeals denied
the petition for review, and the court thereafter issued remittitur on April 11, 2014. Grant
was barred from seeking further review from the South Carolina Supreme Court. See
Ellison v. State, 676 S.E.2d 671, 672 (S.C. 2009) (barring petitions to the South Carolina
Supreme Court seeking review of orders issued by the South Carolina Court of Appeals
denying discretionary review of post-conviction relief matters).
C. Federal Habeas Petition
On April 15, 2014, Grant filed the present petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 alleging that he was denied effective assistance of counsel
in violation of the Sixth Amendment. In his petition, Grant makes the following claim:
“Ineffective Assistance of Counsel in violation of the U.S. Constitution, Amendment VI.”
Pet’r’s Br. 6. On September 11, 2014, Bush filed a return and motion for summary
judgment. The court issued an order on September 12, 2014 advising Grant of the
summary judgment dismissal procedure and the possible consequences for failure to
adequately respond to the motion. See Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975). Grant filed his response in opposition to Bush’s summary judgment motion on
November 3, 2014. Grant also filed a motion for judgment on the pleadings and a motion
for an evidentiary hearing on November 3, 2014. Bush filed a response in opposition to
Grant’s motions on November 20, 2014.
The magistrate judge issued an R&R on March 9, 2015 recommending that
Bush’s motion for summary judgment be granted and Grant’s motions for judgment on
4
the pleadings and for an evidentiary hearing be denied. The magistrate judge determined
that Grant failed to timely file his petition within the applicable statute of limitations.
Grant filed objections to the R&R on March 26, 2015, and the matter is now ripe for this
court’s review.
II. STANDARDS OF REVIEW
A. R&R
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C.
636(b)(1). The court may adopt the portions of the R&R to which the petitioner did not
object, as a party’s failure to object is accepted as agreement with the conclusions of the
magistrate judge. Thomas v. Arn, 474 U.S. 140, 149–50 (1985). The recommendation of
the magistrate judge carries no presumptive weight, and it is this court’s responsibility to
make a final determination. Mathews v. Weber, 423 U.S. 261, 270–71 (1976).
B. Pro Se
Grant appears pro se in this case. Federal district courts are charged with liberally
construing petitions filed by pro se litigants to allow for the development of a potentially
meritorious claim. See Hughes v. Rowe, 449 U.S. 5, 9–10 (1980). Pro se petitions are
therefore held to a less stringent standard than those drafted by attorneys. See Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Liberal construction, however, does not
mean that the court may ignore a clear failure in the pleading to allege facts that set forth
a cognizable claim. See Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 390–91 (4th Cir.
1990).
5
C. Motion for Judgment on the Pleadings
A motion for judgment on the pleadings pursuant to Rule 12(c), see Fed. R. Civ.
P. 12(c), should not be granted unless the complaint states facts sufficient to constitute a
cause or causes of action against the defendant and the answer does not state facts
sufficient to constitute a defense to the complaint. See Conley v. Gibson, 355 U.S. 41,
45–46 (1957). A plaintiff’s Rule 12(c) motion tests only the sufficiency of the
defendant’s answer and does not resolve the merits of the plaintiff’s claims or any
disputes of fact. Butler v. United States, 702 F.3d 749, 751 (4th Cir. 2012). The standard
of review applicable to motions for judgment on the pleadings under Rule 12(c) is the
same de novo standard applicable to motions under Rule 12(b)(6). All well-pleaded
factual allegations must be taken as true and must be construed most favorably toward the
non-movant. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Nevertheless, a court is not
obliged to accept as true allegations that “represent unwarranted inferences, unreasonable
conclusions, or arguments . . . that contradict matters properly subject to judicial notice or
by exhibit.” Blankenship v. Manchin, 471 F.3d 523, 529 (4th Cir. 2006).
D. Evidentiary Hearing
An evidentiary hearing in a federal habeas action challenging a state conviction
will not be held unless: (1) petitioner shows a new rule of law or that the factual basis for
the claim at issue was unavailable; and (2) the facts sought to be proved would “establish
by clear and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C.
§ 2245(e)(2). In deciding whether to grant an evidentiary hearing, a federal district court
must consider whether such a hearing could enable an applicant to prove the petition’s
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factual allegations which, if true, would entitle the applicant to federal habeas relief. See,
e.g., Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Because the deferential standards
prescribed in § 2254 control whether to grant habeas relief, a federal district court must
take into account those standards in deciding whether an evidentiary hearing is
appropriate. See id. (“Whether [an applicant’s] allegations, if proven, would entitle him
to habeas relief is a questioned governed by [AEDPA].”)
E. Summary Judgment
Summary judgment shall be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Where a party “fails to make a showing sufficient to establish the
existence of an element essential to his case,” Rule 56(a) mandates entry of summary
judgment against that party. Celotex v. Catrett, 477 U.S. 317, 322 (1986). In deciding
whether there is a genuine issue of material fact, the evidence is viewed in the light most
favorable to the non-moving party with all justifiable inferences drawn in its favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
III. DISCUSSION
Although difficult to decipher, Grant seems to object to numerous
recommendations from the R&R, arguing that the magistrate judge erred in finding that:
(1) Grant failed to timely file his ineffective assistance of counsel claim within the statute
of limitations; (2) the evidence presented during his trial was sufficient to establish his
guilt beyond a reasonable doubt; and (3) Grant does not have a viable ineffective
assistance of counsel claim.
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A. Statute of Limitations under AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides
relief to a person in custody pursuant to the judgment of a state court if the custody is “in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). AEDPA imposes a one-year statute of limitations period that begins to run on
the date a petitioner’s conviction becomes final by the conclusion of direct review or the
expiration of the time for seeking such review.2 Id. § 2244(d)(1); Harris v. Hutchinson,
209 F.3d 325, 327 (4th Cir. 2000). Further, the statute requires a petitioner to exhaust
available remedies in state court before the federal court may consider a claim. Id.
§ 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must
present his claims to the state’s highest court.” Matthews v. Evatt, 105 F.3d 907, 911
(4th Cir. 1997).
State collateral review tolls the one-year statute of limitations under
§ 2244(d)(1)(A) for properly filed pleadings. Artuz v. Bennet, 531 U.S. 4, 8 (2000); see
28 U.S.C. § 2244(d)(2) (“The time during which a properly filed application for State
post-conviction or collateral relief with respect to the pertinent judgment or claim that is
pending shall not be counted toward any period of limitation under this subsection.”)
(emphasis added). The time, however, does not begin anew after completion of the postconviction proceedings, but rather is only suspended while the post-conviction
proceedings are pending. See Harris, 209 F.3d at 328; see also, Moore v. Crosby, 321
F.3d 1377, 1381 (11th Cir. 2003) (“While a ‘properly filed’ application for postconviction relief tolls the statute of limitations, it does not reset or restart the statute of
2
The statute also provides other possible accrual dates for the one-year limitations period that are
not relevant here. See 28 U.S.C. § 2244(d)(1)(B)–(D).
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limitations once the limitations period has expired.”); Smith v. McGinnis, 208 F.3d 13,
17 (2nd Cir. 2000) (“We therefore hold that proper calculation of Section 2244(d)(2)’s
tolling provision excludes time during which properly filed state relief applications are
pending but does not reset the date from which the one-year statute of limitations begins
to run.”). ”Upon final disposition of the state post-conviction proceeding, the running of
the § 2244(d) one-year period resumes.” Harris, 209 F.3d at 327.
Applying these criteria to the present case, Grant failed to timely file his petition
within the one-year limitations period pursuant to AEDPA procedures. See 28 U.S.C.
§ 2244(d)(1)(A). In light of his failure to file a timely petition for rehearing, Grant’s state
court convictions became final on February 27, 2009, fifteen days after the South
Carolina Court of Appeals issued its opinion in Grant’s direct appeal. See Gonzalez v.
Thaler, 132 S. Ct. 641, 654 (2012) (rejecting use of remittitur dates in applying 28 U.S.C.
§ 2244(d)(1)(A) and stating that because petitioner “did not appeal to the State’s highest
court, his judgment became final when his time for seeking review with the State’s
highest court expired”); S.C. App. Ct. R. 221(a) (petition for rehearing must be actually
received by the court within fifteen days from opinion). Grant’s failure to file a petition
for rehearing precluded him from seeking certiorari from the South Carolina Supreme
Court, as the remittitur must be issued absent the timely filing of such a petition. See
S.C. App. Ct. R. 221(b); see also Wise v. S.C. Dep’t of Corr., 642 S.E.2d 551, 551 (S.C.
2007) (“When the remittitur has been properly sent, the appellate court no longer has
jurisdiction over the matter and no motion can be heard thereafter.”). Further, since
Grant failed to seek certiorari from the South Carolina Supreme Court, he is not entitled
to the tolling of an additional ninety days. See Gonzalez, 132 S. Ct. at 654 (“[B]ecause
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[petitioner] did not appeal to the State’s highest court, his judgment became final when
his time for seeking review with the State’s highest court expired.”). Additionally,
Grant’s failure to seek certiorari from the South Carolina Supreme Court correspondingly
precluded Grant from meeting the jurisdictional requirements of the Supreme Court of
the United States. See 28 U.S.C. § 1257 (“Final judgments or decrees rendered by the
highest court of a State in which a decision could be had, may be reviewed by the
Supreme Court by writ of certiorari . . . .”).
Thus, the one-year limitations period in this case began on February 27, 2009 and
expired one year later on February 27, 2010. Grant, however, filed his state postconviction relief action on March 25, 2010, three-hundred and ninety-one days after the
accrual of the one-year statute of limitations. While Grant argues that the instant action
was timely filed as the state post-conviction relief action tolled the limitations period,
such tolling suspends, not restarts, the limitations period under AEDPA. See Harris v.
Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000). Even if Grant’s post-conviction relief
application had been properly filed and could toll the statute of limitations, the current
federal petition, filed on April 15, 2014, would still be untimely as the time period for
filing the federal habeas petition had already expired when Grant filed his post-conviction
relief application. Therefore, once his state post-conviction proceedings become final on
April 11, 2014, the federal habeas statute of limitations had already expired. See
Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not
permit the reinitiation of the limitations period that has ended before the state petition
was filed.”); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (holding that a
state post-conviction motion filed after the expiration of the federal habeas statute of
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limitations period cannot toll the period because there is no period remaining to be
tolled); Ballard v. Cuccinelli, 2011 WL 1827866, at *2 (E.D. Va. May 12, 2011) (“[A]
state post conviction motion filed after expiration of the limitations period cannot toll the
period, because there is no period remaining to be tolled.” (quoting Deville v. Johnson,
2010 WL 148148, at *2 (E.D. Va. Jan. 12, 2010))); Rashid v. Khulmann, 991 F. Supp.
254, 259 (S.D.N.Y. 1998) (“Once the limitations period is expired, collateral petitions
can no longer serve to avoid a statute of limitations.”). As such, Grant’s petition is
untimely, unless the limitations period is subject to equitable tolling.
B. Equitable Tolling and Actual Innocence
AEDPA’s statute of limitations is subject to equitable tolling “in appropriate
cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). Equitable tolling “must be
reserved for those rare instances where—due to circumstances external to the party’s own
conduct—it would be unconscionable to enforce the limitation period against the party
and gross injustice would result.” Harris, 209 F.3d at 330. To be entitled to equitable
tolling, a petitioner must show “(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way” and prevented timely filing. Id.
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). On the other hand, misleading
or incorrect advice provided by counsel, such as “simple miscalculation that leads a
lawyer to miss a filing deadline,” Holland, 560 U.S. at 651, is an insufficient justification
for the application of equitable tolling. See Rouse v. Lee, 339 F.3d 238, 248 (4th Cir.
2003).
In his petition, Grant contends that he is entitled to an equitable exception to
§ 2244(d)(1)’s statute of limitations, known as the “actual innocence” exception. Grant
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argues in his response to Bush’s motion for summary judgment and in his motions for
judgment on the pleadings and for an evidentiary hearing that he is actually innocent of
his crimes of conviction and, thus, under McQuiggin, this court should consider the
merits of his petition.3 See McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013). “[A]
credible showing of innocence may allow a prisoner to pursue his constitutional
claims . . . on the merits notwithstanding the existence of a procedural bar to relief.” Id.
at 1931. Thus, “actual innocence, if proved, serves as a gateway through which a
petitioner may pass” to bring a habeas petition, for instance, after expiration of the statute
of limitations. Id. at 1928. “A petitioner claiming actual innocence ‘must establish that,
in light of new evidence, it is more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt.’” Stallings v. Warden of Evans Corr.
Inst., No. 2:10-cv-02668, 2011 WL 4549229, at *5 (D.S.C. Oct. 3, 2011) (quoting House
v. Bell, 547 U.S. 518, 536–37 (2006)).
However, “claims of actual innocence are rarely successful,” Schlup v. Delo, 513
U.S. 298, 324 (1995), and “should not be granted casually,” Wilson v. Greene, 155 F.3d
396, 404 (4th Cir. 1998). To invoke this exception to AEDPA’s statute of limitations, a
petitioner must show “that it is more likely than not that no reasonable juror would have
3
Specifically, Grant argues:
[T]he state has unconstitutionally obtained a verdict based on scant
circumstantial evidence. Where the trial record shows that the state produced no
proof or eyewitness to say at trial they saw me shoot anyone. Moreover, what
state did was present video depicting me in area and allowed jury to speculate
that at time of shooting, since I was in area it is a reasonable probability it was
me shooting. Such evidence presented cannot be proof of guilt beyond a
reasonable doubt . . . . This witness who was next to me confirmed that it was
not me that did shooting and simply because my clothes according to state stood
out among others and my statement I was wearing those clothes without more
should not and cannot form basis of a conviction as it was herein . . . .
Pl.’s Objections 2.
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convicted him in light of the new evidence.” McQuiggin, 133 S. Ct. at 1935 (quoting
Schlup, 513 U.S. at 327). “The gateway should open only when a petition 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 non-harmless
constitutional error.” McQuiggin, 133 S. Ct. at 1936 (quoting Schlup, 513 U.S. at 316).
This formulation “ensures that petitioner’s case is truly ‘extraordinary,’ while still
providing petitioner a meaningful avenue by which to avoid manifest injustice.” Schlup,
513 U.S. at 327 (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)).
As stated earlier, Grant argues in his response to Bush’s motion for summary
judgment that the state “unconstitutionally obtained a verdict based [on] scant
circumstantial evidence.” Pl.’s Objections 2, ECF No. 50. The only “new” evidence
referenced by Grant is the testimony of Cornelius Morrison (“Morrison”), who testified at
Grant’s post-conviction relief hearing that he was near Grant when gunshots were fired.
PCR Hr’g Tr. 45, Feb. 28, 2012, ECF No. 24-2. Morrison further testified that he was
with Grant on the night in question and never saw Grant use a firearm, PCR Hr’g Tr. 46,
ECF No. 24-2, and that Grant looked around to determine where the shots came from,
PCR Hr’g Tr. 47.
At the post-conviction relief hearing, Judge Harrington found that Grant’s “newly
discovered evidence,” which consisted solely of Morrison’s testimony, was “not
credible.” Order of Dismissal 11, ECF No. 24-2. Namely, Judge Harrington noted that
Morrison’s testimony concerning Grant’s actions after the gunshots was inconsistent with
the prosecutor’s testimony describing the scene on the surveillance video. Id.
Specifically, the prosecutor described the video as showing people running away from
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the area while Grant remained in the same location. Grant then ran in the direction of the
victim, not away from the gunshots, as one would expect if the shots were fired by a third
party. Additionally, another witness at trial, Justin Singleton (“Singleton”), testified that
his friend and Grant’s friend, Glen Gladden (“Gladden”), was also shot at the scene.
Trial Tr. vol. 1, 437, March 9, 2006, ECF No. 24-2. Singleton testified that Grant visited
Gladden in the hospital and stated, “my bad.” Singleton also testified that he had told
investigators that Grant did the shooting and was apologizing “for shooting Glen.” Id.
Further, by Grant’s own admission, he did not inform his attorney of Morrison, and
Judge Harrington held that Grant failed to show how the information Morrison provided
could not have been discovered before trial. Pet’r’s PCR Appl.
Judge Harrington’s factual findings are supported by the evidence presented
during Grant’s trial. In particular, Judge Harrington’s credibility finding is a factual
determination entitled to deference in this action. Cagle v. Branker, 520 F.3d 320, 324
(4th Cir. 1998); see 28 U.S.C. § 2254(e)(1) (“[F]or a federal habeas court to overturn a
state court’s credibility judgments, the state court’s error must be stark and clear.”); see
also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (Title “28 U.S.C. § 2254(d) gives
federal habeas courts no license to redetermine credibility of witnesses whose demeanor
has been observed by the state trial court, but not by them”). Grant may overcome this
presumption of correctness only by showing “clear and convincing evidence to the
contrary,” Wilson v. Ozmint, 352 F.3d 847, 858–59 (4th Cir. 2003), which he has failed
to do.
In light of the foregoing, Grant has failed to demonstrate that no reasonable juror
could find him guilty beyond a reasonable doubt had Morrison testified during Grant’s
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trial. Grant’s “exculpatory” evidence is not “so strong that a court [could not] have
confidence in the outcome of the trial . . . .” Schlup, 513 U.S. at 316. Accordingly,
Grant’s actual innocence claim does not toll the one-year limitations period.
In his objections, Grant makes additional arguments—not raised in his original
petition or his response to Bush’s motion for summary judgment—as to why he failed to
file a timely petition. Grant contends that he was in the process of filing his PCR, but his
attorney, Joseph Savitz, told him the incorrect day by which he was required to file.
Pet’r’s Objections 4. Grant further contends that he was delayed in filing his PCR
because he was transferred from Lieber Correctional Institution to Kirkland Correctional
Institution, and then to Lee Correctional Institution, delaying receipt of his paperwork.
Id. Generally, “‘[t]ransfers between prison facilities, solitary confinement, lockdowns,
restricted access to the law library and an inability to secure court documents do not
qualify as extraordinary circumstances.”’ Allen v. Johnson, 602 F. Supp. 2d 724, 727–28
(E.D. Va. 2009) (footnote omitted) (quoting Warren v. Kelly, 207 F. Supp. 2d 6, 10
(E.D.N.Y. 2002)); see also Sullivan v. Ozmint, No. 8:08-cv-1088-, 2008 WL 1994835, at
*3 (D.S.C. Apr. 14, 2008) (“[L]ockdowns, restricted library access and transfers do not
constitute extraordinary circumstances sufficient to equitably toll the [AEDPA] statute of
limitations. Prisoners familiar with the routine restrictions of prison life must take such
matters into account when calculating when to file a federal [habeas] petition . . . .”
(quoting Atkins v. Harris, 1999 WL 13719, *2 (N.D. Cal. Jan.7, 1999))). Further, as
stated above, misleading or incorrect advice provided by counsel, such as “simple
miscalculation that leads a lawyer to miss a filing deadline,” Holland, 560 U.S. at 651, is
an insufficient justification for the application of equitable tolling.
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The court finds that Grant has failed to establish that he diligently pursued his
rights, but that some extraordinary circumstance stood in the way to justify the delay.
See Lochnar v. Thomas, 517 U.S. 314, 326 (1996) (the party seeking equitable tolling
must have acted with “reasonable diligence” throughout the period he seeks to toll).
Grant’s transfer among prison facilities does not amount to an extraordinary circumstance
to warrant tolling the statute of limitations. Similarly, his counsel’s miscalculation of the
filing deadlines also does not rise to the level of an extraordinary circumstance.
Additionally, although Judge Young equitably tolled the statute of limitations in
Grant’s state PCR proceedings—referencing Grant’s attorney’s advice and prison
transfer—such equitable tolling does not further toll the statute of limitations in his
federal habeas petition because it is not considered “properly filed.” See 28 U.S.C. §
2244(d)(1) (the one-year statute of limitations is tolled while “a properly filed application
for State post-conviction or other collateral review with respect to the pertinent judgment
or claim is pending.” (emphasis added)); see also Ballard, 2011 WL 1827866, at *2 (“[A]
state post conviction motion filed after expiration of the limitations period cannot toll the
period, because there is no period remaining to be tolled.” (quoting Deville v. Johnson,
2010 WL 148148, at *2 (E.D. Va. Jan. 12, 2010))).
Therefore, Bush’s motion for summary judgment is granted.
C. Ineffective Assistance of Counsel
Furthermore, even if Grant timely filed his habeas petition, summary judgment
would still be proper. In his petition, Grant raises one ground of ineffective assistance of
counsel, but fails to allege any facts to support his claim. See Pet’r’s Pet. for Writ of
Habeas Corpus 6, ECF No. 1. Generally, pro se petitions are to be given liberal
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construction, see Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519
(1972), and “are not scrutinized as closely for compliance with formal standards as are
those drawn by practicing attorneys,” Golden v. Newsome, 755 F. 2d 1478, 1480 n.4
(11th Cir. 1985). However, there are limits on the duty of a court in this regard. It is well
settled that a district court need not construct claims from obscure references in a pro se
petition. See Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir. 1985), cert. denied,
475 U.S. 1088 (1986). Thus, there must be more than a “fleeting reference” to properly
present an issue. Id. at 1278. Such “[u]nsupported, conclusory allegations do not entitle
a habeas petitioner to an evidentiary hearing.” Nickerson v. Lee, 971 F.2d 1125, 1136
(4th Cir. 1992, overruled on other grounds by Gray v. Netherland, 518 U.S. 152, 165–66
(1996).
Further, to the extent Grant’s ineffective assistance of counsel claim is based on
the alleged incompetence of counsel during his state post-conviction proceedings, his
claim undoubtedly fails. Federal law provides that “[t]he ineffectiveness or
incompetence of counsel during Federal or State collateral post-conviction proceedings
shall not be a ground for relief in a proceeding arising under section 2254.” 28 U.S.C.
§ 2254(i). The Supreme Court recently explained that section 2254 precludes a habeas
petitioner from “relying on the ineffectiveness of his postconviction attorney[s]” “as an
independent basis for overturning his conviction.” Martinez v. Ryan, 132 S. Ct. 1309,
1320 (2012). Therefore, even if Grant’s attorneys had made egregious errors during his
post-conviction proceedings, those errors simply would not amount to free-standing
claims for federal habeas relief. Accordingly, Grant is not entitled to relief pursuant to 28
U.S.C. § 2254.Grant’s objections are overruled.
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D. Motion for Evidentiary Hearing
Lastly, Grant is not entitled to an evidentiary hearing. Pursuant to section
2254(e)(2), the court “shall not” hold an evidentiary hearing unless the Petitioner “shows
that” he meets the requirements of both subsections (A) and (B). See 28 U.S.C.
§ 2254(e)(2). Petitioner’s ineffective assistance of counsel claim certainly does not meet
the standard in subsection (A)(i) because his claim does not rely on a new rule of
constitutional law but instead relies on Strickland v. Washington, 466 U.S. 668 (1984).
Nor does his claim rely on “a factual predicate that could not have been previously
discovered through the exercise of due diligence.” 28 U.S.C. § 2254(e)(2)(A)(ii). Grant
has therefore not shown that these ineffective assistance of counsel claims meet the
standard in § 2254(e)(2)(A). Furthermore, Grant has not shown that the “facts underlying
the claim would be sufficient to establish by clear and convincing evidence that, but for
the ineffective assistance of counsel, “no reasonable factfinder would have found the
applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B).
IV. CONCLUSION
Based upon the foregoing, the magistrate judge’s R&R is AFFIRMED, Bush’s
motion for summary judgment is GRANTED, and Grant’s motions for judgment on the
pleadings and for an evidentiary hearing are DENIED.
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AND IT IS SO ORDERED.
__________________________________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
August 11, 2015
Charleston, South Carolina
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