Opinion
C/A No. 8:19-cv-01872-HMH-JDA
07-17-2019
Arimatia Arpad Buggs, Petitioner, v. Warden Tyger River Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Arimatia Arpad Buggs ("Petitioner"), proceeding pro se, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Petitioner is a state prisoner in the custody of the South Carolina Department of Corrections and is currently incarcerated at the Tyger River Correctional Institution. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Judge. For the reasons that follow, the Petition is subject to summary dismissal as time barred.
BACKGROUND
On April 11, 2000, Petitioner pled guilty in the Charleston County Court of General Sessions to the crimes of murder, attempted murder, first degree burglary, and attempted armed robbery and was sentenced to a total term of imprisonment of 30 years. [Doc. 1 at 1]; see also State v. Arimatia Arpad Buggs, case numbers F867197, F867198, F867199, F867200, available at https://jcmsweb.charlestoncounty.org/PublicIndex/PISearch.aspx (search by case numbers F867197, F867198, F867199, F867200) (last visited July 15, 2019). A review of the Petition and state court records indicates that Petitioner did not appeal his convictions or sentences.
According to the Charleston County Public Index, Petitioner was sentenced to a 30-year term of imprisonment at case number F867197 (indictment number 1998GS1008081) for murder, to a 30-year term of imprisonment at case number F867198 (indictment number 1998GS1008082) for attempted murder, to a 20-year term of imprisonment at case number F867199 (indictment number 1998GS1008083) for attempted armed robbery, and to a 25-year term of imprisonment at case number F867200 (indictment number 1998GS1008084) for first degree burglary, with all sentences to run concurrent.
The Court takes judicial notice of the records in Petitioner's state court criminal proceedings. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts "may properly take judicial notice of matters of public record"); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that 'the most frequent use of judicial notice is in noticing the content of court records.'").
On April 2, 2001, Petitioner filed a state court post conviction relief ("PCR") action in the Charleston County Court of Common Pleas at case number 2001-CP-10-01209, asserting claims for ineffective assistance of counsel, involuntary plea, lack of subject matter jurisdiction for the attempted murder charge, prosecutorial misconduct, and actual innocence, among other claims. [Id. at 2]; see also Buggs v. State of South Carolina, No. 2001-CP-10-01209, available at https://jcmsweb.charlestoncounty.org/PublicIndex/PISearch.aspx (search case number "2001CP1001209") (last visited July 15, 2019) (the "first PCR action"). The PCR court granted relief to Petitioner on his claim that the trial court lacked subject matter jurisdiction for the attempted murder charge, but denied relief on the remaining grounds. [Id. at 3.]
Petitioner has attached to his Petition a copy of the PCR court's order of dismissal in his first PCR action, in which the PCR court extensively addressed the merits of Petitioner's claims. [Doc. 1-1 at 7-40.] As noted, the PCR court granted relief to Petitioner on his claim that the trial court lacked jurisdiction over the attempted murder charge due to a change in the law. The PCR court explained as follows:
The Applicant entered a guilty plea to "attempted murder" on indictment 98-GS-10-8082 on April 11, 2000 and was sentenced to thirty (30) years. . . . [A]n intervening decision, State v. Sutton, 340 S.C. 393, 532 S.E.2d 283 (2000), on May 15, 2000 held that the offense of "attempted murder" is not recognized. The court therein held that the crime was covered by the offenses of assault and battery with intent to kill or assault with intent to kill. Therefore, the conviction for "attempted murder" and sentence is vacated for lack of subject matter jurisdiction. . . . The South Carolina Department of Corrections is to receive a copy of this Order and is directed to correct its records and remove this particular conviction and sentence.[Doc. 1-1 at 9-10.] The PCR court then carefully evaluated Petitioner's many other claims for relief, but concluded as follows:
Based on all the foregoing, this Court finds and concludes that [Petitioner] has not established any constitutional violations or deprivations before or during his plea and sentencing proceedings. Therefore, this Application for Post-Conviction Relief must be denied and dismissed with prejudice, with the exception of the Attempted Murder conviction and sentence on Indictment 98-GS-10-8082.[Id. at 38.] The PCR court denied and dismissed the remaining claims with prejudice and dismissed the action on January 30, 2003. [Id. at 39.] Thereafter, Petitioner filed a motion for reconsideration, which the PCR court denied on February 26, 2003.
The "Attempted Murder" conviction and thirty year sentence on Indictment 98-GS-10-8082 is vacated due to a lack of subject matter jurisdiction.
On June 21, 2005, Petitioner filed a second state court PCR action in the Charleston County Court of Common Pleas at case number 2005-CP-10-02621, asserting claims for ineffective assistance of counsel, involuntary plea, prosecutorial misconduct, triggerman issue, among other claims. [Doc. 1 at 2]; see also Buggs v. State of South Carolina, No. 2005-CP-10-2621, available at https://jcmsweb.charlestoncounty.org/PublicIndex/PISearch.aspx (search case number "2005CP1002621") (last visited July 15, 2019) (the "second PCR action"). The PCR court held a hearing on January 23, 2008, and subsequently dismissed the action on February 20, 2008. [Doc. 1-1 at 1-6.] As explained by the PCR court in its order of dismissal of Petitioner's second PCR action, the parties reached an agreement on the issues presented in the PCR and placed the terms of their agreement on the record. Specifically, the PCR court approved the parties' agreement
The order of dismissal in Petitioner's second PCR action is dated February 4, 2008; however, it was not filed until February 20, 2008. [See Doc. 1-1 at 5-6.]
. . . 1) that [Petitioner] should receive a belated appeal from the denial of his [first] PCR, pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (S.C. 1991); and 2) that the issues preserved in the Austin appeal are those raised in a Motion for Reconsideration and supporting memorandum thereto, styled "Notice of Motion and Motion to Alter & Amend the Judgment," filed by [Petitioner] in response to the denial of his initial application for [PCR] relief; and 3) that, for the purposes of the above-referenced action, [Petitioner] waives all other issues raised in his Application herein.[Doc. 1-1 at 5.] The PCR court held that
. . . [Petitioner] should receive a belated appeal from the denial of his PCR, pursuant to [Austin]. I further find the issues preserved in the Austin appeal are those raised in [Petitioner's] Motion for Reconsideration and supporting memorandum thereto, styled "Notice of Motion and Motion to Alter & Amend the Judgment," filed by [Petitioner] in response to the denial of his initial application for [PCR] relief. The remaining allegations in the [PCR] Application are dismissed with prejudice.[Id. at 6.]
While the PCR court granted Petitioner a belated appeal of his first PCR action pursuant to Austin, the South Carolina Court of Appeals denied the petition for writ of certiorari on January 6, 2010.
In the instant Petition, Petitioner asserts the following grounds for federal habeas relief: (1) ineffective assistance of counsel because plea counsel advised Petitioner to plead guilty to a charge that violated subject matter jurisdiction, failed to quash Petitioner's indictments during the preliminary hearing, and failed to advise Petitioner of his right to file a direct appeal [Doc. 1 at 5]; (2) actual innocence based on witness testimony [id. at 6-7]; (3) false arrest because the date of Petitioner's arrest was the day prior to the date on the arrest warrant [id. at 8]; and (4) appeal of guilty plea based on plea counsel's statement to Petitioner that he did not have a right to appeal [id. at 9-10]. For his relief, Petitioner requests that his sentence be vacated. [Id. at 14.]
Petitioner has attached to his Petition 40 pages of supporting documents from the state court proceedings, including a transcript of record from a hearing held by the PCR court on January 23, 2008, in his second PCR action, and Orders entered by the PCR court on February 4, 2008, in his second PCR action, and January 29, 2003, in his first PCR action. [See Doc. 1-1.]
Regarding the timeliness of the instant Petition, Petitioner asserts that his "time ran out as a result of [i]neffective [a]ssistance of counsel." [Id. at 13.] Specifically, Petitioner contends that his PCR counsel failed to file a notice of appeal, although he was later granted the right to a belated Austin appeal. [Id.] Petitioner also asserts that he has claimed actual innocence and that his "plea was coerced, involuntary, and [he] was duped into taking it at the instruction of [his] attorney." [Id.]
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in the above-captioned case. The review was conducted pursuant to the procedural provisions of 28 U.S.C. § 1915, the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub. L. 104-132, 110 Stat. 1214, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). While Petitioner has paid the full filing fee, this Court is charged with screening Petitioner's lawsuit to determine if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts (2012). Pursuant to this rule, a district court is "authorized to dismiss summarily any habeas petition that appears legally insufficient on its face." McFarland v. Scott, 512 U.S. 849, 856 (1994).
Because Petitioner is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). However, even under this less stringent standard, the Petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
DISCUSSION
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Here, Petitioner challenges his state conviction, seeking habeas relief under 28 U.S.C. § 2254. Nevertheless, after a review of the Petition and the record in this case, the Petition appears to be subject to dismissal because it is time barred. A federal court may raise the issue of the timeliness of a habeas petition sua sponte. Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002); Wright v. Anderson, No. 8:18-cv-00191-JMC, 2019 WL 1170821, at *2 (D.S.C. Mar. 13, 2019). As the Fourth Circuit has noted,
[A] district court has the discretion, but not the obligation, to consider on its own motion the timeliness of a habeas petition under AEDPA if (1) the parties have fair notice and an opportunity to be heard; (2) the state has not waived the limitations defense; (3) the "petitioner is not significantly prejudiced by the delayed focus on the limitation issue"; and (4) the court "determine[s] whether the interests of justice would be better served by addressing the merits or by dismissing the petition as time barred."Gray v. Branker, 529 F.3d 220, 241 (4th Cir. 2008) (quoting Day v. McDonough, 547 U.S. 198, 209-11 (2006)). Once the court has raised the issue, it "must accord the parties fair notice and an opportunity to present their positions" on the issue. Day, 547 U.S. at 210.
Under the AEDPA, petitioners have one year to file a petition for writ of habeas corpus. 28 U.S.C. § 2244(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 the judgment of a State court."). The limitations period runs from the latest of four 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;28 U.S.C. § 2244(d)(1)(A)-(D). However, the statute tolls the limitations period during the time "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." Id. § 2244(d)(2). While the limitations period is tolled during the pendency of a properly filed collateral attack on the subject conviction, the one-year statute of limitations begins to run on the date a petitioner's conviction becomes final, not at the end of collateral review. Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000).
(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.
Strict time deadlines govern a direct appeal and the filing of a PCR application in the South Carolina courts. For a direct appeal, the notice of appeal must be filed and served on the respondent within ten days after the sentence is imposed or after receiving written notice of entry of the order or judgment. See S.C. App. Ct. R. 203(b)(2), (d)(1)(B). A PCR application must be filed within one year of judgment, or, if there is an appeal, within one year of the appellate court decision. S.C. Code § 17-27-45; see also Reddic v. Wilson, No. 8:12-CV-232-MGL-JDA, 2012 WL 7688170, at *5 (D.S.C. Aug. 13, 2012), Report and Recommendation adopted in part, rejected in part sub nom. Reddic v. Cartledge, No. 8:12-cv-00232-DCN, 2013 WL 1010327 (D.S.C. Mar. 14, 2013).
Here, it appears from the face of the Petition that the action is time barred. Petitioner was sentenced on April 11, 2000. Petitioner did not file a direct appeal. Accordingly, Petitioner's conviction became final 10 days after April 11, 2000, the date of sentencing, because that was the last date on which he could have served a timely notice of appeal from his guilty plea. See Rule 203(b)(2), SCACR. Petitioner's conviction therefore became final on April 21, 2000.
"In South Carolina, a defendant must file a notice of appeal within 10 days of his conviction. See Rule 203(b)(2), SCACR. Thus, if a defendant does not file a direct appeal, his conviction becomes final ten days after the adjudication of guilt. Crawley v. Catoe, 257 F.3d 395, 398 (4th Cir. 2001). If a defendant files a direct appeal and his conviction is affirmed, the conviction becomes final 90 days after the final ruling of the South Carolina Supreme Court." Hodge v. Warden of Camille Griffin Graham Corr. Inst., No. 3:11-cv-2893-MGL-JRM, 2012 WL 6872061, at *3 (D.S.C. Aug. 2, 2012), Report and Recommendation adopted by 2013 WL 178263 (D.S.C. Jan. 17, 2013).
Petitioner filed his first PCR action in the state court on April 2, 2001, or 346 days after his sentence became final. The limitations period was tolled during the pendency of his state court PCR action. The PCR court entered an order of dismissal on January 30, 2003, and denied Petitioner's motion for reconsideration on February 26, 2003. Petitioner appealed the order of dismissal on March 14, 2008, after he was granted permission to file a belated appeal pursuant to Austin after filing his second PCR action. Out of an abundance of caution, the Court will assume that the petition for writ of certiorari was timely filed and that the limitations period was tolled throughout the entire time from the date Petitioner filed his first PCR action and the reviewing court's denial of his petition for review.
The statute of limitations is tolled during the period that "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). The statute of limitations is tolled for the entire period of the state post conviction process, "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)." Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999).
The Court notes that, in so construing the dates, as contained on the docket sheet from the Charleston Public Index, the limitations period was tolled for a nearly 10-year period.
Likewise, Petitioner's second PCR action was filed on June 21, 2005. On February 20, 2008, the PCR court in the second PCR action granted Petitioner a belated appeal on his first PCR action, but ultimately dismissed the second PCR action and denied the claims in that action to the extent they were not part of the claims preserved for review in his first PCR action. The South Carolina Court of Appeals denied Petitioner's petition for writ of certiorari as to both PCR actions on January 6, 2010. As noted, out of an abundance of caution, the Court finds that the statute was tolled from the date Petitioner filed his first state court PCR action on April 2, 2001, until the South Carolina Court of Appeals denied review of both PCR actions on January 6, 2010. The limitations period began to run again on that date.
Petitioner filed the instant habeas action on June 18, 2019, which is the date the Petition was delivered to the prison authorities for forwarding to the District Court. [Doc. 1-2 at 1 (envelope stamped as received in the Tyger River Correctional Institution mailroom on June 18, 2019)]; see Houston v. Lack, 487 U.S. 266, 270-76 (1988) (explaining that a prisoner's pleading is filed at moment of delivery to prison authorities for forwarding to District Court). Accordingly, from January 6, 2010, until June 18, 2019, an additional 3,450 days (nearly nine and a half years) elapsed. Thus, approximately 3,796 days total have elapsed during the limitations period as follows:
• The limitations period began to run when Petitioner's conviction became final on August 21, 2000.
• It then ran for 346 days until he filed his first PCR action was filed on April 2, 2001.
• Next, the period was tolled while Petitioner's PCR proceedings were pending as to both state court PCR actions.
• The limitations period began again on January 6, 2010, when his petition for writ of certiorari was denied by the South Carolina Court of Appeals.
• The limitations period finally expired 19 days later, on January 25, 2010. However, Petitioner's habeas action was not filed until June 18, 2019, more than 9 years after the limitations period expired.
Thus, it appears Petitioner filed the instant action beyond the one-year statute of limitations by 3,431 days. This aggregate time period exceeds the one-year statute of limitations of 28 U.S.C. § 2244(d). See Harris, 209 F.3d at 327. Accordingly, the undersigned concludes based on the face of the pleadings that Petitioner's § 2254 Petition is barred by the applicable one-year limitations period. The undersigned finds that the interests of justice would not be better served by addressing the merits of the Petition. Importantly, no court proceedings have occurred in this matter and nothing in the record before the Court suggests that Petitioner has been impaired in bringing this Petition in a timely manner.
Further, Petitioner has not identified and the Court can find no reason why the limitations period is subject to equitable tolling. The one-year statute of limitations provided by § 2244(d) is subject to equitable tolling which could extend the final date for filing. Lindh v. Murphy, 521 U.S. 320 (1997); Harris, 209 F.3d at 328. A petitioner may be entitled to equitable tolling of the statute of limitations if he can demonstrate "(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time." Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003). The United States Supreme Court has held that the statute would be equitably tolled "only if [the petitioner] shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). There is no evidence that equitable tolling is warranted in this case. Petitioner has not demonstrated that he pursued his rights diligently or that some extraordinary circumstances stood in his way to prevent him from timely filing his federal habeas petition. Petitioner has acknowledged that his Petition is untimely, but he contends that his counsel was ineffective in failing to file a notice of appeal and that he is actually innocent. [Doc. 1 at 13.] However, "mistake of counsel does not serve as a ground for equitable tolling . . ." Burns v. Beck, 349 F. Supp. 2d 971, 974 (M.D.N.C. 2004); see also Gleaton v. Bush, No. 4:14-cv-890-TMC, 2014 WL 5527826, at *8 (D.S.C. Oct. 31, 2014) ("[Petitioner's] trial counsel's failure to file a direct appeal . . . does not justify equitable tolling of the statutory deadline."); Jones v. South Carolina, No. 4:05-cv-2424-CMC-TER, 2006 WL 1876543, at *3 (D.S.C. June 30, 2006) ("'[E]xtraordinary 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."). Likewise, the Fourth Circuit has held that "even in the case of an unrepresented prisoner, ignorance of the law is not a basis for equitable tolling." United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). "Similarly, courts have held that 'unfamiliarity with the legal process, lack of representation, [and] illiteracy do[ ] not constitute grounds for equitable tolling.'" Stallings v. Warden of Evans Corr. Inst., No. 2:10-cv-02668-RBH, 2011 WL 4549229, at *5 (D.S.C. Oct. 3, 2011) (quoting Burns, 349 F. Supp. 2d at 974).
Petitioner contends that the one-year statute of limitations should not apply to this case because he is actually innocent. However, he has failed to make a sufficient showing of actual innocence. If a § 2254 petitioner makes a "credible showing of actual innocence," he may pursue his habeas claims even if the statute of limitations has expired. McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). This exception to the time bar applies only if a petitioner demonstrates that in light of new and reliable evidence not presented at trial "'it is more likely than not that no reasonable juror would have convicted him.'" Id. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). "Moreover, a petitioner must show factual innocence and not merely legal insufficiency." Hutley v. Warden, Lieber Corr. Inst., No. 9:17-cv-2962-TMC, 2018 WL 3303283, at *3 (D.S.C. July 5, 2018) (citing Bousley v. United States, 523 U.S. 614, 623 (1998)).
With regard to the actual innocence claim, Petitioner alleges that
Witness Patrick Linder testified that [Petitioner's] codefendant made an admission of guilt when he and Anthony Green were cell mates; Witness Amber Holladay told [the] court she lied in statements to prosecution because she felt threatened by [the] Solicitor; [the] state offered a 10 year deal to [Petitioner] to testify against Green because they never believed [Petitioner] was triggerman; [n]o evidence (physical) identified [Petitioner] as triggerman.[Doc. 1 at 6-7.] All of this "evidence" that Petitioner references in his actual innocence argument, however, was presented during his PCR evidentiary hearing and considered by the PCR court in his first PCR action. [See Doc. 1-1 at 33-34.] After weighing the evidence and testimony offered by Petitioner, the PCR court rejected Petitioner's claims. Thus, Petitioner's proffered evidence is not new, nor is it reliable. As the Fourth Circuit has recently noted, "[a] valid actual innocence claim 'requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.'" Hayes v. Carver, 922 F.3d 212, 216 (4th Cir. 2019) (quoting Schlup, 513 U.S. at 324). Petitioner has not offered any new reliable evidence to support an actual innocence claim and has therefore failed to meet this demanding standard. As such, his claim is facially inadequate to require consideration. Accordingly, the undersigned concludes that Petitioner has failed to show actual innocence and therefore is not entitled to equitable tolling on such a basis.
For example, the PCR court weighed the conflicting testimony presented at the evidentiary hearing and "reject[ed] the testimony of Patrick Linder as not credible"; found that Green's "testimony was bolstered by the testimony of Mr. Pennington"; "reject[ed] Linder's testimony that Green told him that he shot the victims and that Green came to him for advice"; found "credible Anthony Green's testimony that [Petitioner] was the actual triggerman"; found "credible counsel Pennington's testimony that [Petitioner] advised him that he was the actual triggerman"; noted that witness Amber Holloday "denied at the PCR hearing that she had made the report of threats to her" and found "counsel Pennington's testimony, however, credible on that issue concerning the impact her comments had on the plea decision." [Doc. 1-1 at 33-34.]
Therefore, in light of all the foregoing, the undersigned finds that the Petition should be dismissed as barred by the applicable statute of limitations. Petitioner's attention is directed to the following important notice:
The Petitioner's right to file objections to this Report and Recommendation constitutes Petitioner's opportunity to object to a dismissal of this Petition based on the statute of limitations. The undersigned concludes that because Petitioner has addressed the timeliness issue in his Petition, he has already had an opportunity to explain his position prior to dismissal; however, this Report and Recommendation is further notice and opportunity for Petitioner to explain his position on the timeliness of the Petition. Hill, 277 F.3d at 707 (explaining timeliness may be raised sua sponte if evident from face of pleading, but petitioner must be given warning and opportunity to explain before dismissal); Bilal v. North Carolina, 287 F. App'x 241, 248-49 (4th Cir. 2008).
Upon initial review, it appears from the face of the Petition that Petitioner has filed this action beyond the one-year statute of limitations. Therefore, this Report and Recommendation shall serve as notice to Petitioner that the undersigned has recommended this case for dismissal based on the running of the one-year statute of limitations. Section 2244(d) provides that a petition for writ of habeas corpus must be filed within one year of the date on which the conviction being challenged becomes final. The one-year period does not run ("is tolled") during the time period that a direct appeal and a post-conviction relief ("PCR") application are pending.§ 2244(d) , including but not limited to, any factual dispute regarding the relevant dates of filings in state court mentioned, and/or facts supporting the application of equitable tolling, and/or facts or evidence to support Petitioner's claim of actual innocence. See Rouse v. Lee , 339 F.3d 238, 246 (4th Cir. 2003).
In accordance with the notice rule articulated in Day v. McDonough, 547 U.S. 198, 209 (2006); McMillan v. Jarvis, 332 F.3d 244, 249 (4th Cir. 2003); and Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002), this Report and Recommendation is NOTICE to Petitioner that this action is subject to dismissal based on the running of the one-year statute of limitations. Unless Petitioner provides facts casting doubt on the issue of the untimeliness of his Petition and thereby prevent dismissal based on the limitations bar, this case is subject to dismissal. Accordingly , Petitioner is directed to file a factual explanation with this Court, within fourteen (14) days of the date of service of this Report and Recommendation, to show cause why his Petition should not be dismissed based on the application of the one-year limitation period established by 28 U.S.C.
RECOMMENDATION
Accordingly, it is recommended that this action be dismissed with prejudice and without requiring the Respondent to file an answer or return because the Petition is clearly untimely under the one year limitations provision of the AEDPA, 28 U.S.C. § 2244(d).
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge July 17, 2019
Greenville, South Carolina
Petitioner's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street, Room 239
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).