Hendricks v. Padula

Filing 60

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant and granting 24 Motion to Dismiss. The Court denies a certificate of appealability. Signed by Honorable Sol Blatt, Jr on 2/14/2013.(cwhi, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Jerry Lee Hendricks,
Petitioner,

v.
Anthony Padula, Warden, Lee
Correctional Institution,
Respondent.

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Civil Action No. 9:12-367-S8

ORDER

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This matter is before the Court upon the Petitioner's pro se application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, which he filed in this Court on February 1,
2012. In his petition, the Petitioner attempts to challenge several state court convictions:
(1) a Chesterfield County conviction and sentence for committing or attempting a lewd act
upon a child under 16 (indictment number 2003-GS-13-0241); (2) a Darlington County
conviction and sentence for committing or attempting a lewd act upon a child under 16
(indictment number 2002-GS-16-3085); (3) a Darlington County conviction and sentence
for contributing to the delinquency of a minor (indictment number 2002-GS-16-3087); and
(4) a Horry County conviction and sentence for assault and battery of a high and
aggravated nature (indictment number 2001-GS-1866). At the time he filed this section
2254 petition, the Petitioner was inca rcerated as the result of the first two above-mentioned
convictions, but he was not in custody as a result of the third and fourth above-mentioned
convictions, which had expired by the time he filed the instant petition. 1
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(8)(2)(c), D.S.C.,

1 At this time, the Petitioner has been released from the South Carolina Department
of Corrections and is incarcerated in Illinois on apparently unrelated charges.

the matter was referred to a United States Magistrate Judge for preliminary consideration
and for a report and recommendation (UR&R"). On August 10, 2012, the Respondent filed
a motion to dismiss, following which the Magistrate Judge issued an order pursuant to
Roseboro v. Garrison, 528 F.2d 309 (1975), advising the Petitioner of the dismissal
procedure and explaining the possible consequences if he failed to respond to the motion.
The Roseboro order was returned as undeliverable, but on August 30,2012, the Petitioner
informed the Court of his new address. Therefore, the Magistrate Judge issued a second
Roseboro order. After receiving two extensions of time, the Petitioner provided the Court
with documents containing personal identification material protected by Rule 5.2(a) of the
Federal Rules of Civil Procedure. 2 The Clerk returned these materials to the Petitioner with
instructions to redact all personal information. Ultimately, however, the Petitioner failed to
respond, and on January 18, 2013, the Magistrate Judge issued an R&R/ to which the

2 Rule 5.2, titled "privacy protection for filings made with the court," provides in
pertinent part:

(a) Redacted Filings. Unless the court orders otherwise, in an electronic or
paper filing with the court that contains an individual's social-security number,
taxpayer-identification number, or birth date, the name of an individual known
to be a minor, or a financial-account number, a party or nonparty making the
filing may include only:

(1) the last four digits of the social-security number and
taxpayer-identification number;
(2) the year of the individual's birth;
(3) the minor's initials; and
(4) the last four digits of the financial-account number.
Fed. R. Civ. P. 5.2(a).
3
The Magistrate Judge makes only a recommendation to the Court. The
recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The

2

Petitioner filed timely written objections.
In the R&R, the Magistrate Judge first recommended that the Court dismiss the
Petitioner's challenges to the Darlington County conviction for contributing to the
delinquency of a minor (indictment number 2002-GS-16-3087) and the Horry County
conviction for assault and battery of a high and aggravated nature (indictment number
2001-GS-1866) based on the fact that the Petitioner was not "in custody" under these
convictions at the time he filed the instant petition.
Next, the Magistrate Judge considered the Petitioner's claims arising out of the
Chesterfield County conviction for committing or attempting a lewd act upon a child under
16 (indictment number 2003-GS-13-0241) and the Darlington County conviction for
committing or attempting a lewd act upon a child under 16 (indictment number 2002-GS­
16-3085). With respect to the Petitioner's challenge to these convictions, the Magistrate
Judge determined that the Petitioner failed to bring this section 2254 petition within the
one-year limitations period set forth in the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA"), 28 U.S.C. § 2244(d).4 This one-year limitations period begins to run

Court is charged with making a de novo determination of any portion of the R&R to which
a specific objection is made. The Court may accept, reject, or modify, in whole or in part,
the recommendation made by the Magistrate Judge or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b).
4 Although the Respondent did not raise the issue of timeliness, the United States
Supreme Court has acknowledged that district courts are "permitted, but not obliged, to
consider, sua sponte, the timeliness of a state prisoner's habeas petition." Day v.
McDonough, 547 U.S. 198,209 (2006); see also Eriline Co. S.A. v. Johnson, 440 F.3d
648, 655 (4th Cir.2006) (carving out habeas corpus petitions and in forma pauperis
complaints as narrow circumstances to permit sua sponte consideration of statute of
limitations when defense is clear on face of petition or complaint). In Day, the Court
instructed that "before acting on its own initiative, a court must accord the parties fair notice
and an opportunity to present their positions." Day, 547 U.S. at 210; see also Hill v.

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from the latest of four possible dates:
(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

(0)

the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.

28 U.S.C. § 2244(d)(1 )(A-O). Additionally, section 2244(d)(2) tolls the limitations period
for U(t]he 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." 28 U.S.C. §
2244(d)(2). "(U]nder § 2244(d)(2) the entire period of state post-conviction proceedings,
from initial filing to final disposition by the highest state court (whether decision on the
merits, denial of certiorari, or expiration of the period of time to seek further appellate
review), is tolled from the limitations period for federal habeas corpus petitioners ...."
Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999).
Here, as the Magistrate Judge determined, the Chesterfield County conviction
(indictment number 2003-GS-13-0241) became final on April 6, 2005, the date the

Braxton, 277 F.3d 791 (noting that a district court should warn a prisoner that the case is
subject to dismissal under section 2244(d) and give the prisoner a chance to respond
before dismissing the case). Here, the Magistrate Judge's R&R gave the Petitioner fair
notice of the timeliness issue, and he has had the opportunity to fully respond.

4

Petitioner voluntarily dismissed his appeal and when the South Carolina Supreme Court
issued its remittitur. When the Petitioner filed his post-conviction relief ("PCR") application
on Mary 9, 2005, 33 days of non-tolled time had already passed. Then, the limitations
period was tolled during the pendency of his PCR application, until February 23,2011, the
date when the South Carolina Supreme Court issued the remittitur. When the Petitioner
filed this section 2254 petition on February 1, 2012 (342 days after the Supreme Court's
remittitur), a total of 375 non-tolled days had passed.
Likewise, with respectto the Darlington County conviction (indictment number 2002­
GS-16-3085), which became final on December 29,2003 (ten days after he entered his
guilty plea and was sentenced), by the time the Petitioner filed the instant section 2254
petition, more than eight years of non-tolled time had passed.
In the R&R and in a subsequent order, the Magistrate Judge made it clear to the
Petitioner that he needed to address the issue of timeliness in his objections. Despite
these warnings, the Court has reviewed the Petitioner's objections and finds them difficult
to decipher. Giving the Petitioner the benefit of the doubt, however, it appears that the
Petitioner may be asking the Court to equitably toll the statute of limitations.
The Supreme Court has held that the AEDPA's one-year limitations period is subject
to equitable tolling. Holland v. Florida, - U.S. -, 130 S.Ct. 2549 (2010). Generally, a
petitioner seeking equitable tolling bears the burden of establishing (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citation omitted). Equitable tolling
is available only in "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

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party and gross injustice would result." Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003)
(en banc) (quotation marks omitted), cert. denied, 516 U.S. 832 (2004); see also United
States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (quoting the same). Moreover, as the
Fourth Circuit stated in Harris v. Hutchinson:
[A]ny invocation of equity to relieve the strict application of a statute of
limitations must be guarded and infrequent, lest circumstances of
individualized hardship supplant the rules of clearly drafted statutes. To
apply equity generously would loose the rule of law to whims about the
adequacy of excuses, divergent responses to claims of hardship, and
subjective notions of fair accommodation. We believe, therefore, that any
resort to equity 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.
209 F.3d 325, 330 (4th Cir. 2000). For example, courts have held that "unfamiliarity with
the legal process, lack of representation, or illiteracy does not constitute grounds for
equitable tolling." Burns v. Beck, 349 F. Supp. 2d 971,974 (M.D. N.C. 2004) (citing Harris,
209 F.3d at 330-32). "Likewise, mistake of counsel does not serve as a ground for
equitable tolling ... Nor are prison conditions, such as lockdowns or misplacement of legal
papers, normally grounds for equitable tOiling."

ki.;

see also Sosa, 364 F.3d 507 (noting

that ignorance ofthe law is not a basis for equitable tolling); Jones v. South Carolina, 2006
WL 1876543, *3 (D.S.C. June 30, 2006) ("Other courts addressing equitable tOiling have
found that 'extraordinary circumstances' are not: having an inadequate law library, attorney
error, claims of actual innocence, reliance on other inmates' advice, ignorance of the
AEDPA filing deadline, or even (in some instances) petitioner illness.") (emphasis in

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original) (unpublished)5; Jenkins v. Johnson, 2009 WL 1923938, *4 (E.D. Va. June 29,
2009) ("[D]elays due to seeking legal advice and related allegations of inadequate prison
law libraries have consistently been held not to constitute the 'extraordinary circumstances'
to warrant the application of equitable tolling.") (citations omitted) (unpublished).
Here, the Court has reviewed the record and the Petitioner's objections and finds
that the Petitioner has failed to allege grounds sufficient to warrant equitable tolling. In
other words, the Court finds that the grounds raised by the Petitioner, e,g., that he did not
receive a "final notice" of the denial of his post-conviction relief application in the
Chesterfield conviction (indictment number 2003-GS-13-2041) until January 23,2011,6
simply do not present extraordinary circumstances where it would be unconscionable to
enforce the limitations period.
Accordingly, the Court adopts the R&R (Entry 55) and fully incorporates it herein;
the Court overrules the Plaintiff's objections (Entry 59); and the Court grants the
Respondent's motion to dismiss (Entry 24).
AND IT IS SO ORDERED.

-L!I:-,

February
2013
Charleston; ,outh Carolina

5 As Judge Currie noted in Jones, an example of "extraordinary circumstance" was
found to exist by the Ninth Circuit Court of Appeals in Miles v. Prunty, 187 F.3d 1104 (9th
Cir. 1999), where an inmate had relied on prison officials to cut a check and mail his
section 2254 petition to the district court. 2006 WL 1876543, *3, n. 5.
6 As the Magistrate Judge noted, even assuming the Petitioner did not receive "final
notice" until January 23, 2011, he still waited more than one year from that date to file the
instant section 2254 petition.

7

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 petitioner satisfies this standard by demonstrating that reasonable
jurists would find that this Court's assessment of the constitutional claims is debatable or
wrong or that the issues presented were adequate to deserve further attention. See
Miller-EI 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). Here, the Court finds that the
Petitioner has not met the legal standard for the issuance of a certificate of appealability.
Therefore, the Court denies a certificate of appealability.

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