Elmore v. Lewis

Filing 35

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 17 Motion for Summary Judgment. Petitioners § 2254 motion is denied and dismissed, with prejudice. Certificate of appealability is denied. Signed by Honorable Margaret B Seymour on 1/4/2017.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Michael Lorenzo Elmore, #138418,

)
) C/A No. 9:16-1064-MBS
Petitioner,
)
)
vs.
)
)
ORDER AND OPINION
Scott Lewis, Warden of Perry Correctional )
Institution,
)
)
Respondent.
)
____________________________________)
Petitioner Michael Lorenzo Elmore is an inmate in custody of the South Carolina Department
of Corrections who currently is housed at Perry Correctional Institution in Pelzer, South Carolina.
Petitioner, proceeding pro se, has petitioned under 28 U.S.C. § 2254 for writ of habeas corpus,
alleging that he is being detained unlawfully.
I. FACTS AND PROCEDURAL HISTORY
Petitioner pleaded guilty in the Colleton County, South Carolina, Court of General Sessions
on May 1, 1989, to burglary first degree, grand larceny, armed robbery, and murder. The trial judge
sentenced Petitioner to incarceration for a period of life for murder and concurrent terms of twentyfive years as to the remaining charges, the sentences to be served concurrently to time Petitioner
then was serving for previous convictions in Orangeburg County, South Carolina. On or about
February 29, 1996, Petitioner filed an application in state court for post-conviction relief (PCR). The
matter came before the Honorable Jackson V. Gregory for a hearing on February 25, 1997. The PCR
judge issued an order dismissing Petitioner’s PCR application on March 31, 1997. Petitioner did not
appeal the PCR judge’s order.
Petitioner filed a second PCR application on or about May 24, 2012. The Honorable Carmen

T. Mullen determined that Petitioner’s second PCR action should be summarily dismissed as
successive under S.C. Code Ann. § 17-27-90. According, the second PCR judge issued a conditional
order of dismissal on September 4, 2012. A final order of dismissal was issued on April 2, 2015.
Petitioner filed the within action seeking federal habeas review on March 31, 2016.1 In
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United
States Magistrate Judge Bristow Marchant for pretrial handling.
Respondent Scott Lewis, Warden of Perry Correctional Institution, filed a return and motion
for summary judgment on August 22, 2016. Respondent asserts, among other things, that
Petitioner’s § 2254 petition is time-barred because it was filed outside the applicable one-year
limitations period. See 28 U.S.C. § 2244. By order filed August 23, 2016, pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was advised of the summary judgment procedures
and the possible consequences if he failed to respond adequately. Petitioner filed a response in
opposition on September 27, 2016.
On September 30, 2016, the Magistrate Judge issued a Report and Recommendation in which
he determined that the within § 2254 petition is barred by the applicable limitations period set forth
in § 2244(d)(1)(A) or d(1)(D). Accordingly, the Magistrate Judge recommended that Respondent’s
motion for summary judgment be granted and the § 2254 petition dismissed. Petitioner filed
objections to the Report and Recommendation on October 24, 2016, to which Respondent filed a
reply on November 10, 2016.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
1

Petitioner is given the benefit of a filing date of March 31, 2016, although the § 2254
petition was not filed with the Office of the Clerk of Court until April 4, 2016. See Houston v.
Lack, 487 U.S. 266, 270-76 (1988).
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no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). This court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1).
This court may also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. Id. This court is obligated to conduct a de novo review of every portion of the
Magistrate Judge’s report to which objections have been filed. Id.
II. DISCUSSION
Section 2244 provides, in relevant part:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to a 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.
Section 2244(d) is part of the Anti-Terrorism and Effective Death Penalty Act (AEDPA),
which became effective on April 24, 1996.
Petitioner objects to the Magistrate Judge’s finding that the within § 2254 petition is untimely
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under § 2244(d)(1)(A). Petitioner appears to contend that application of the limitations period
deprives him of his right to habeas corpus. To the contrary, the United States Supreme Court has
ruled that the AEDPA does not violate the Suspension Clause, Art. I, § 9, cl. 2. Felder v. Turpin,
518 U.S. 651, 652 (1996).
Because Petitioner was convicted prior to the enactment of the AEDPA, Petitioner was
required to file his petition for writ of habeas corpus no later than April 24, 1997, one year from the
effective date of the AEDPA, unless the time for filing was tolled. See Brown v. Angelone, 150 F.3d
370 (4th Cir. 1998). In this case, Petitioner’s one-year period was tolled under section 2244(d)(2)
during the pendency of his first PCR proceeding, which commenced February 29, 1996, until April
30, 1997, the expiration of the thirty-day period during which Petitioner could have appealed the first
PCR judge’s decision. Thus, the one year limitations period commenced on this date and expired one
year later, on April 30, 1998. Petitioner did not seek federal habeas review until March 31, 2016,
when he filed his § 2254 petition. Petitioner’s second PCR application did not toll the limitations
period because that application was not filed until May 2, 2012, well beyond the one year limitations
period that expired on April 30, 1998.2 The court concludes that the within petition is time-barred
under § 2244(d)(1)(A). Accord Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000). Petitioner’s
objections are without merit.
Petitioner contends that the Magistrate Judge erred in finding Petitioner’s § 2254 petition is
not reviewable under §2244(d)(1)(D). Petitioner contends that he located a letter regarding forensic
testing on March 21, 2013, that had not previously been available to him through the exercise of due
2

Moreover, a successive PCR application generally is not considered to be “properly
filed” within the meaning of § 2244(d)(2), and thus does not toll the limitations period. See Pace
v. DiGuglielmo, 544 U.S. 408, 412-16 (2005).
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diligence. Petitioner asserts that the forensic evidence could have been exculpatory.
Assuming for purposes of summary judgment that Petitioner could not have obtained this
information through the exercise of due diligence, Petitioner would have been required to seek
habeas review no later than March 21, 2014. Petitioner waited over two years to file the within
action. The limitations period was not tolled during the pendency of Petitioner’s second PCR
proceeding because the second PCR application was not “properly filed.” Petitioner’s objections
are without merit.
III. CONCLUSION
For the reasons stated herein and in the Report and Recommendation, Respondent’s motion
for summary judgment (ECF No. 17) is granted. Petitioner’s § 2254 motion is denied and
dismissed, with prejudice.
CERTIFICATE OF APPEALABILITY
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). A prisoner satisfies this standard by demonstrating
that reasonable jurists would find that any assessment of the constitutional claims by the district
court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise
debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Rose v. Lee, 252 F.3d 676, 683-84
(4th Cir. 2001). The court concludes that Petitioner has not made the requisite showing.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
Senior United States District Judge
Charleston, South Carolina
January 4, 2017
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NOTICE OF RIGHT TO APPEAL
Petitioner is hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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