Cooper v. Stevenson

Filing 52

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; finding as moot 44 Motion to Stay; granting 21 Motion for Summary Judgment. Petitioners § 2254 petition is DISMISSEDwith prejudice. Certificate of appealability is denied. Signed by Honorable Bruce Howe Hendricks on 1/11/2016.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Wayne D. Cooper, #331763,

) Civil Action No.: 9:14-4500-BHH
)
Petitioner, )
)
v.
)
OPINION AND ORDER
)
Robert Stevenson, Broad River Corr. Inst.,
)
)
Respondent. )
__________________________________ )
Petitioner Wayne D. Cooper, (“Petitioner”), proceeding pro se, filed this

application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the action was
referred to United States Magistrate Judge Bristow Marchant, for pretrial handling and a
Report

and

Recommendation

(“Report’).

Judge

Marchant

recommends

that

Respondent’s motion for summary judgment be granted and Petitioner’s § 2254 petition
be dismissed with prejudice. (ECF No. 39.) The Report sets forth in detail the relevant
facts and standards of law on this matter and the Court incorporates them without
recitation.
BACKGROUND
Petitioner filed this action against Respondent on October 10, 2014,1 alleging,
inter alia, ineffective assistance of counsel. On July 30, 2015, the Magistrate Judge
issued a Report; and on August 19, 2015, Petitioner filed his Objections (ECF No. 42).

1

This filing date reflects that the envelope containing the petition shows two dates for receipt of the
petition by the BRCI (Broad River Correctional Institution) mailroom. (ECF No.1-2.) Houston v. Lack, 487
U.S. 266 (1988) (holding prisoner's pleading is considered filed when given to prison authorities for
forwarding to the district court). Petitioner has been given filing credit based on the earlier date, October
10, 2014.

On August 24, 2015, Petitioner filed a Motion to Stay “pending the exhaustion of his
state remedies.” (ECF No. 44 at 1.) The Court has reviewed the objections, but finds
them to be without merit. The Court further finds that Petitioner’s Motion to Stay is moot.
Therefore, it will enter judgment accordingly.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the court. The
recommendation has no presumptive weight. The responsibility to make a final
determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976).
The court is charged with making a de novo determination of those portions of the
Report and Recommendation 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 with instructions. 28 U.S.C. § 636(b)(1). However, the
court need not conduct a de novo review when a party makes only “general and
conclusory objections that do not direct the court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Cir.1982). In the absence of a timely filed, specific objection, 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).
DISCUSSION
The Magistrate Judge found that each of the grounds raised in the petition are
procedurally barred and the Court agrees. The Magistrate Judge provided a detailed
procedural history of Petitioner’s first and second appeals for post-conviction relief

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(“PCR”) and explained how the tolled and non-tolled time was calculated under the
requisite statute of limitations. He ultimately found that Petitioner failed to file his § 2254
petition in federal court within the one year statute of limitations following the exhaustion
of his state court remedies. (ECF No. 39 at 4–5.)
Here, Petitioner objects to the Magistrate Judge’s calculation of non-tolled time,
arguing that his pro se Rule 59(e) Motion in his first PCR action tolled the statute of
limitations. (ECF No. 42 at 3.) Petitioner filed the pro se Rule 59(e) Motion on December
20, 2013. (ECF No. 20-13.) However, Petitioner was represented by counsel at that
time and, as noted by the Magistrate Judge, a pro se motion is “essentially a nullity”
when a litigant is represented by counsel. (ECF No. 39 at 3 n.3 (citing Miller v. State,
697 S.E.2d 527 (S.C. 2010)). Accordingly, the pro se motion was not timely filed and
therefore did not toll the statute of limitations for any period of time. Petitioner’s
objection is therefore overruled.
Moreover, Petitioner has demonstrated neither cause, prejudice, nor a
fundamental miscarriage of justice to overcome the procedural bar. See Coleman v.
Thompson, 501 U.S. 722, 749–750 (1991). Therefore, the Court is unable to review the
petition under § 2254.
CONCLUSION
For the reasons stated above and by the Magistrate Judge, the Court overrules
Petitioner’s objections and adopts and incorporates by reference the Magistrate Judge’s
Report herein. The Court further denies Petitioner’s Motion to Stay (CEF No. 44), as the
motion is now MOOT. It is therefore ORDERED that Respondent’s motion for summary

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judgment (ECF No. 21) is GRANTED and Petitioner’s § 2254 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 this standard by demonstrating that reasonable
jurists would find this court’s assessment of his constitutional claims is 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 (2003); Slack v. McDaniel, 529
U.S. 473, 484 (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 met.
Therefore, a certificate of appealability is DENIED.
IT IS SO ORDERED.

/s/Bruce Howe Hendricks
United States District Judge
January 11, 2016
Greenville, South Carolina
*****
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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