Santamaria v. Warden Turbeville Correctional Institution

Filing 36

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. Respondent's motion for summary judgment is granted and the Petition is dismissed with prejudice. Certificate of appealability is denied. Signed by Honorable Richard M Gergel on 10/11/2011.(cwhi, )

RECE'IYEG

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

2011 OCT I 1 P 3: 05
Macario Santamaria, #330240
Petitioner,
v.
Warden, Turbeville Correctional Institution,

Respondent.

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Civil Action No.9: 10-31 83-RMG

ORDER

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In this pro se action, Petitioner filed an application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2), DSC, this
matter was automatically referred to the United States Magistrate Judge for all pretrial proceedings.
On September 15,2011, the Magistrate Judge issued a Report and Recommendation recommending
that Respondent's motion for summary judgment be granted. (Dkt. No. 33). The Magistrate Judge
advised Petitioner of the procedures and requirements for filing objections to the Report and
Recommendation and the serious consequences if he 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.

LAWI ANALYSIS
The Magistrate Judge makes only a recommendation to this Court. The recommendation has
no presumptive weight, and responsibility for making a final determination remains with this Court.

Matthew v. Weber, 423 U.S. 261,270-71 (1976). This Court is charged with making a de novo
determination of those portions of the Report and Recommendation to which specific objection is

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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)(1)(C). This court may also "receive
further evidence or commit the matter to the magistrate with instructions." ld. In the absence of
specific objections to the Report and Recommendation, this Court is not required to give any
explanation for adopting the recommendation. Camby v. Davis, 718 F. 2d 198 (4th Cir. 1983).
This Court has reviewed the Report and Recommendation for any clear errors oflaw and has
found none. As explained in the Report and Recommendation, Petitioner's application for habeas
corpus is barred by the applicable statute of limitations. Since Petitioner filed his petition after the
effective date ofthe Antiterrorism and Effective Death Penalty Act of 1996, review of his claims is
governed by 28 U.S.c. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v.
Pruett, 134 F.3d 615 (4th Cir. 1998). Section 2254(d) provides the following statute oflimitations:
(d)(l) A I-year period of limitation shall apply to an application for a writ ofhabeas

corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of­
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized by
the Supreme Court and made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
(2) 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
shall not be counted toward any period of limitation under this subsection.
28 U.S.c. § 22S4(d).
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This Petition arises out of a September 22, 2008 conviction in Charleston County, South
Carolina for trafficking in cocaine.

As the Magistrate Judge explained in the Report and

Recommendation, Petitioner filed his application for a writ of habeas corpus four hundred and
twenty-one (421) non-tolled days after the statute of limitations began to run. (See Dkt. No. 33 at
6-7). Thus, Petitioner's application was not filed within the I-year period allowed under 28 U.S.C.
§ 2254(d). The limitations period may be equitably tolled if Petitioner shows (1) he has been

diligently pursuing his rights and (2) some extraordinary circumstances stood in his way, preventing
him from timely filing his habeas petition. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
However, Petitioner has not established, or even attempted to establish, that these two elements are
met in this case. Accordingly, Petitioner's claims are barred by the applicable statute oflimitations.

CONCLUSION
Based on the above authority, the Court adopts the Magistrate's Report and
Recommendation. Thus, Respondent's motion for summary judgment is GRANTED, and the
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 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,

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537 U.S. 322,336 (2003); Slackv. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F. 2d 676,
683 (4th CiT. 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.

AN~RED.

Richard Mark Gergel
United States District Court Judge

fL,

2011
October
Charleston, South Carolina

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