Hicks v. State of South Carolina

Filing 30

ORDER RULING ON REPORT AND RECOMMENDATIONS and granting Respondent's motion for summary judgment. Signed by Honorable Richard M Gergel on 8/12/11. (kric, )

IN THE UNITED STATES DISTRlCT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Ruben Kenneth Hicks,
Petitioner,

v.
Leroy Cartledge, Warden,
Respondent.

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Case No. 8:1O-2535-RMG
ORDER

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In this case, Petitioner filed a pro se Petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. As a result, this case was automatically referred to the United States Magistrate
Judge for all pretrial proceedings pursuant to 28 U .S.C. § 636(b)(1 )(A) and (B) and Local Civil Rule
73.02(B)(2)(c) and (e), D.S.C. The Magistrate has issued a Report and Recommendation which
recommends that Respondent's motion for summary judgment be granted and that Petitioner's
Petition be denied. (Dkt. No. 27.) The Magistrate Judge advised Petitioner of the procedures and
requirements for filing objections to the Report and Recommendation and the serious consequences
ifhe failed to do so. Petitioner failed to file any objections to the Report and Recommendation. As
explained herein, this Court adopts the Report and Recommendation and grants Respondent's
motion for summary judgment.
LAW/ANALYSIS
The Magistrate makes only a recommendation to this Court. The recommendation has no
presumptive weight, and responsibility for making a final determination remains with this Court.

Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). This Court is
charged with making a de novo determination ofthose portions of the Report and Recommendation

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to which specific objection is made, and this Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(I). This Court
may also "receive further evidence or recommit the matter to the magistrate with instructions." Id.
Where, as in this case, the Petitioner fails to file any specific objections, 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), and this Court is not required to give any explanation for adopting the
recommendation of the Magistrate. Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).
Upon reviewing the record, this Court agrees with, and wholly adopts, the findings and
recommendations of the Magistrate Judge. The record reflects that the Petitioner did not file his
Petition for a writ of habeas corpus within the statute oflimitations set forth in 28 U.S.C. §2241(d).
Further, Petitioner's contention that he is entitled to equitable tolling ofthe statute oflimitations is
unsupported by law. The statute oflimitations period may be equitably tolled if Petitioner shows (l)
he has been pursuing his rights diligently and (2) some extraordinary circumstances stood in his way
and prevented him from timely filing his habeas petition. Holland v. Florida, 130 S.Ct. 2549, 2562
(2010). Because Petitioner has failed to establish the second element, equitable tolling is not
appropriate in this case.
In support of the second element, Petitioner argues that he was unaware that the time period
in between the date on which judgment against him became final and the date on which he filed an
application for post-conviction relief would count toward the one-year statute oflimitations set forth
in 28 U.S.C. § 2241(d)(1). (See Dkt. No. 18, at 6-7.) Petitioner also argues that he was never
informed ofthe statute of limitations rules "by his plea counsel, PCR counsel, or appellate counsel."
(ld. at 6.) However, as correctly stated in the Magistrate's Report and Recommendation, neither

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Petitioner's ignorance ofthe law nor the failure ofPetitioner' s counsel to educate Petitioner regarding
the law constitutes an extraordinary circumstance entitling Petitioner to equitable tolling. See, e.g.,

United States v, Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (holding that, "even in the case of an
unrepresented prisoner, ignorance ofthe law is not a basis for equitable tolling"); Rouse v. Lee, 339
F.3d 238, 248 (4th Cir. 2003) (holding that ineffective assistance of counsel generally will not
constitute extraordinary circumstances justifying equitable tolling where the prisoner had no
constitutional right to counsel); Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000) (holding that a
mistake by a party's counsel in calculating the statute of limitations does not constitute an
extraordinary circumstance for purposes ofequitable tolling); Boyles v. Virginia, No.7: 05-CV-00075,
2005 WL 2233578, *3 (W.D. Va. Sept 13,2005) ("Mere lack ofknowledge as to a statutory deadline
for filing federal habeas relief or unfamiliarity with the legal process does not support granting such
extraordinary relief [as equitable tolling]."). Because Petitioner has not identified any extraordinary
circumstances beyond his control or external to his own conduct that stood in the way of filing a
timely Petition, the Court agrees with the Magistrate that Petitioner is not entitled to equitable tolling.
Thus, Petitioner's Petition is barred by the statute of limitations, and summary judgment is
appropriate.
Based on the above authority and the record in this matter, the Court finds no error of law
made in the Magistrate's Report and Recommendation.
CONCLUSION
After a thorough review ofthe record, the Magistrate's Report and Recommendation, and the
relevant case law, the Court finds that the Magistrate applied sound legal principles to the facts ofthis
case. Therefore, the Court adopts the Magistrate's Report and Recommendation in its entirety as the
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Order of this Court, and the Respondent's motion for summary judgment is GRANTED.
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 the standard by demonstrating that reasonable jurists
would find this court's assessment of his constitutional claims debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell.
537 U.S. 322, 336,123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slackv. McDaniel, 529 U.S. 473,
484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (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 meet.
Therefore, a certificate of appealability is denied.
AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Court Judge

August l~, 2011
Charleston, South Carolina

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