Anderson v. Warden Ridgeland Correctional Institution et al

Filing 36

ORDER adopting 33 Report and Recommendations of Magistrate Judge Bristow Marchant ; granting Respondent's 25 Motion for Summary Judgment and dismissing the petition with prejudice. A certificate of appealability is denied. Signed by Honorable Joseph F Anderson, Jr on 7/5/11.(hhil, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Solomon Anderson,
Petitioner,
vs.
Warden, Ridgeland Correctional Institution,
Respondent.
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C/A No. 9:10-2413-JFA-BM

ORDER

The pro se petitioner, Solomon Anderson, brings this action pursuant to 28 U.S.C. §
2254 seeking a writ of habeas corpus. He challenges his state court convictions for criminal
sexual conduct and kidnapping.
The Magistrate Judge assigned to this action 1 has prepared a Report and
Recommendation suggesting that the respondent’s motion for summary judgment2 should be
granted because the petition is time barred. The Report sets forth in detail the relevant facts
and standards of law on this matter, and the court incorporates such without a recitation and
without a hearing.
The petitioner was advised of his right to file objections to the Report and
Recommendation, which was entered on the docket on May 24, 2011, and he has timely
1

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).
2

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.

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done so in an objection memorandum filed with the Clerk. The court will address the
objections herein.
After carefully considering the Report and Recommendation and the petitioner’s
objections thereto, the court is of the opinion that the Magistrate Judge’s recommended
disposition is correct and that the Report should be adopted in full.
S TANDARD OF R EVIEW
Summary Judgment
Summary judgment is appropriate only “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed.R.Civ.P. 56(c). Rule 56(c) mandates entry of summary judgment
“against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the
non-moving party is to be believed and all justifiable inferences must be drawn in favor of
the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255(1986).
However, “[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that
are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate.
Once the moving party makes this showing, however, the opposing party may not rest upon
mere allegations or denials, but rather must, by affidavits or other means permitted by the

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Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ.
P. 56(e).
Further, while the federal court is charged with liberally construing a complaint filed
by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz
v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the
court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim,
nor can the court assume the existence of a genuine issue of material fact where none exists.
Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir.1990).
The AEDPA and 28 U.S.C. § 2254
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) , the
§ 2254 petition in this case is time-barred unless it is filed within one year from the date on
which the judgment in state court became final by the conclusion of direct review or by the
expiration of the time for seeking such review. The AEDPA became effective on April 24,
1996. Therefore, since the defendant’s conviction became final prior to the enactment of the
AEDPA, the defendant was required to file his § 2254 petition by at least April 24, 1997,
unless the statute was tolled. The § 2254 petition in this case was not filed until September
15, 2010, over thirteen years later. The Magistrate Judge has carefully reviewed the record
and finds no basis for equitable tolling in this case.
In petitioner’s objections, he alleges that “newly discovered evidence” and “newly
discovered case law” constitute grounds for tolling the applicable statute of limitations. It
is clear, however, from the record in this case, that all of the information necessary to raise
the claims asserted in this habeas petition were well-known to the defendant during the time

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of his trial and immediately thereafter. As to the newly discovered case law, this court is not
aware of any authority for tolling a statute of limitations based upon the fact that the litigant
only recently became aware of the relevant case law.
For all the foregoing reasons, the objections are all overruled, and the Report and
Recommendation is incorporated herein by reference. The respondent’s motion for summary
judgment is granted and the petition is dismissed with prejudice.
Because the defendant has failed to make “a substantial showing of the denial of a
constitutional right,” a certificate of appealability is denied. 28 U.S.C. § 2253(c)(2).3
IT IS SO ORDERED.

Joseph F. Anderson, Jr.
United States District Judge

July 5, 2011
Columbia, South Carolina

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A certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (West 2009). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find both that his constitutional claims are debatable and that
any dispositive procedural rulings by the district court are also debatable or wrong. 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).

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