Dillard v. Ozmint

Filing 26

ORDER RULING ON REPORT AND RECOMMENDATIONS for 20 Report and Recommendations, that respondent's 14 Motion for Summary Judgment filed by Warden Perry Correctional Institution is Granted and this action is dismissed with prejudice. In addition, petitioner's 23 Motion to Compel filed by Robert Earl Dillard is Denied. Signed by Honorable Joseph F Anderson, Jr on 9/2/08. (kmca)

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA R o b e rt Earl Dillard, #220045, ) ) P e t i t io n e r , ) v. ) ) Warden, Perry Correctional Institution, ) ) R e sp o n d e n t. ) _______________________________________ ) C/A No.: 8:07-1533-JFA-BHH ORDER T h e pro se petitioner, Robert Earl Dillard, is a state prisoner confined in the South C a ro lin a Department of Corrections. He initiated this action pursuant to 28 U.S.C. § 2254 s e e k in g relief from his sentence of two consecutive life sentences for murder. He raises three g ro u n d s for relief: (1) after discovered evidence of the state's knowing use of perjured tes tim o n y was used to obtain his conviction; (2) the trial judge's refusal to define "reasonable d o u b t" at the jury's request subjected petitioner to a fundamental miscarriage of justice; and (3 ) the petitioner's murder indictments were "sham legal processed indictments" that did not co n fe r subject matter jurisdiction upon the trial court to convict the petitioner. T h e Magistrate Judge assigned to this action 1 has prepared a comprehensive Report an d Recommendation wherein she suggests that the respondent's motion for summary The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report 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 to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). 1 1 ju d g m e n t2 be granted as the petition is untimely. The Report sets forth in detail the relevant f a cts and standards of law on this matter, and the court incorporates such without a recitation. T h e petitioner was advised of his right to file objections to the Report and R e c o m m e n d a tio n , which was entered on the docket on June 2, 2008. Petitioner filed timely o b je c tio n s 3 to the Report after this court granted him an extension to do so. Petitioner has a lso filed a motion to compel the respondents to produce evidence relevant to equitable to llin g . The court has carefully reviewed these objections and finds them to be without merit, th u s the objections are overruled. B a se d on a review of the record, the Magistrate Judge determined that the petitioner w a s required to file his § 2254 petition by May 12, 1997, unless the one-year limitations p e rio d pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L.No. 1 0 4 -1 3 2 , 110 Stat. 1214 ("AEDPA"), was tolled. The AEDPA provides a one-year statute o f limitations period on the filing of a § 2254 action. Subsection (d) of the statute reads: (D )(1 ) A 1-year period of limitation shall apply to an application for a writ of h a b e a s corpus by a person in custody pursuant to the judgment of a State court. T h e limitation period shall run from the latest of­ (A ) the date on which the judgment became final by the conclusion of An order was issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying petitioner of the summary dismissal procedure and possible consequences if he failed to adequately respond to the motion for summary judgment. Petitioner responded to the motion. Under 28 U.S.C. § 636(b)(1), the district court is obligated to conduct a de novo review of every portion of the Magistrate Judge's Report to which objections have been filed. The court reviews the Report only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to timely file specific written objections to the Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985). 3 2 2 d ire c t review or the expiration of the time for seeking such review; (B ) the date on which the impediment to filing an application created b y State action in violation of the Constitution or laws of the United S t a te s is removed, if the applicant was prevented from filing by such S ta te action; (C ) The date on which the constitutional right was asserted was in itia lly recognized by the Supreme Court, if the right has been newly re c o g n ize d by the Supreme Court and made retroactively applicable to c a se s on collateral review; or (D ) The date on which the factual predicate of the claim or claims p re se n te d could have been discovered through the exercise of due d ilig e n c e. (2) The time during which a properly filed application for state post-conviction o r other collateral review with respect to the pertinent judgment or claim is p e n d i n g shall not be counted toward any period of limitation under this s u b s e c ti o n . 2 8 U.S.C. § 2244(d)(1). T h e following chart illustrates the pertinent dates and tolling periods applicable to p e titio n e r's case: EVENT Date State conviction final P e titio n e r files 1st PCR 1 s t PCR denied P e titio n e r files 2nd PCR 2 n d PCR denied P e titio n e r files 3rd PCR 3 r d PCR denied (improperly filed) S C Supreme Court denies review P r e s e n t Action Filed in USDC May 12, 1997 Oct. 30, 1997 F e b . 19, 1999 M a y 25, 1999 A p r . 1 9 , 2002 Aug. 6, 2002 S e p . 9, 2003 A p r . 24, 2007 M a y 30, 2007 u n to lle d days: May 13, 1997 to Oct. 30, 1997 to lle d days: Oct. 31, 1997 to Feb. 19, 1999 u n to l le d days: Feb. 20, 1999 to May 25, 1999 to lle d days: May 26, 1999 to Apr. 19, 2002 u n to l le d days: Apr. 20, 2002 to Aug. 6, 2002 to lle d days: Aug. 7, 2002 to Sep. 9, 2003 ( n o tolling from Sep.10, 2003 to Apr. 24, 2007) u n to l le d days: Sep. 10, 2003 to May 30, 2007 T o t a l untolled days DATE DAYS 365 -1 7 0 0 -1 0 2 0 -1 0 8 0 -1 ,3 5 8 -1 ,3 7 3 3 U n d er Pace v. DiGulielmo, 544 U.S. 408, 414 (2005), the Supreme Court held that w h e n a post-conviction petition is untimely under state law, it is not considered "properly f ile d ," thus the statutory tolling provisions of Section 2244(d)(2) do not apply. Therefore, p e titio n e r's argument that the nearly four years' time between the final decision on his s e c o n d PCR (April 19, 2002) and when his third PCR (filed August 6, 2002) was denied as im p ro p e rly filed by the S.C. Supreme Court (April 24, 2007) should have been subject to e q u ita b le tolling. U n d e r, Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003), the Fourth circuit held that b e f o re equitable tolling can be applied, the petitioner must show that there was (1) an e x tra o rd in a ry circumstance, (2) beyond his control or external to his own conduct, (3) that p re v e n te d him from filing on time. The Fourth Circuit also held in Harris v. Hutchinson, 2 0 9 F.3d 325 (4th Cir. 2003), that equitable holding can apply when the petitioner is p rev en ted from asserting his claims by some kind of wrongful conduct on the respondent's p a rt and if extraordinary circumstances, beyond the petitioner's control, made it impossible to file his claims on time. The Court in Harris concluded that "any resort to equity must be re s e rv e d for those rare instances where--due to circumstances external to the party's own c o n d u c t-- it would be unconscionable to enforce the limitation period against the party and g ro s s injustice would result." Id. at 330. F irst, the petitioner contends the exculpatory information regarding the allegedly p e rju re d testimony of the State's chief witness, James Simpson, was not available until six ye a rs after petitioner's conviction. As a result of Mr. Simpson's incarceration and p e titio n e r's lack of sooner access to the information, petitioner contends the AEDPA allows 4 th e time to be tolled. However, the information regarding witness Simpson was available a n d discoverable through due diligence; the petitioner failed to request or obtain the in f o rm a tio n earlier. Petitioner has failed to allege circumstances wherein he was " e x tra o rd in a rily prevented" from filing a timely habeas petition. A f te r a careful review of the record, the applicable law, and the Report and R e c o m m e n d a tio n , and the petitioner's objections thereto, the court finds the Magistrate Ju d g e 's recommendation to be proper. Accordingly, the Report and Recommendation is in c o rp o ra te d herein by reference, the respondent's motion for summary judgment is granted, a n d this action is hereby dismissed with prejudice. c o m p e l is denied. IT IS SO ORDERED. In addition, petitioner's motion to S e p te m b e r 2, 2008 C o lu m b ia , South Carolina J o s e p h F. Anderson, Jr. U n ite d States District Judge 5

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