Opinion
C/A No.: 5:19-3588-JMC-KDW
06-16-2020
Gregory Quinn Gathers, Petitioner, v. Scott Lewis, Warden, Respondent.
REPORT AND RECOMMENDATION
Gregory Quinn Gathers ("Petitioner") is an inmate at the Perry Correctional Institution of the South Carolina Department of Corrections who filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 15, 16. On February 27, 2020, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 17. Petitioner did not file a response, and instead filed a Motion to Appoint Counsel. ECF No. 20. On April 14, 2020, the court denied Petitioner's Motion and directed Plaintiff to advise the court whether he wished to continue his case and to file a response to the summary judgment motion by May 4, 2020. ECF No. 25. On May 4, 2020, Petitioner filed a Motion to Continue Summary Judgment. ECF No. 29. The court extended Petitioner's deadline to respond to the summary judgment motion until May 26, 2020, and denied the Motion to Continue as moot. ECF No. 30. Petitioner filed a Response in Opposition to Respondent's Motion on May 22, 2020. ECF No. 33.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 16, be granted, and this Petition be denied. I. Procedural Background
Petitioner was indicted by the Charleston County grand jury during the September 2010 term of court for murder (2010-GS-10-6287). App. 613-14. Petitioner was represented by Charleston County Public Defenders Martha Kent Runey, Esq. and Ted Smith, Esq., and proceeded to a jury trial on November 14 to 17, 2011, before the Honorable J.C. Nicholson, Jr., Circuit Court Judge. App. 1 et. seq. The jury found Petitioner guilty as charged, App. 543-44, and Judge Nicholson sentenced Petitioner to life, App. 561.
Citations to "App." refer to the Appendix for Petitioner's trial transcript and Post-Conviction Relief ("PCR") proceedings. That appendix is available at ECF Nos. 15-1 to 15-3 in this habeas matter.
Petitioner appealed his conviction to the South Carolina Court of Appeals ("Court of Appeals"). ECF No. 15-4. On appeal, Petitioner was represented by Appellate Defender Benjamin J. Tripp, Esq., of the South Carolina Commission on Indigent Defense, Division of Appellate Defense. ECF No. 15-5. Attorney Trip filed a Final Brief of Appellant on or about July 17, 2013, raising the following issue:
Whether the trial court reversibly erred by admitting photographs from the decedent's autopsy depicting her bruised and cut face and body where the State already obtained evidence of the same through the pathologist's testimony and use of diagrams from his examination of the decedent?Id. at 4. On December 18, 2013, the Court of Appeals filed an unpublished decision affirming Petitioner's conviction. ECF No. 15-7. The remittitur was issued on January 3, 2014. ECF No. 15-8.
Petitioner filed an application for post-conviction relief ("PCR") on March 27, 2014, in which he alleged ineffective assistance of counsel claims. App. 563-68. At PCR, Petitioner was represented by Christopher L. Murphy, Esq. App. 575 et. seq. A PCR evidentiary hearing was held before the Honorable Deadra Jefferson, Circuit Court Judge, on December 14, 2015, at which Petitioner's trial counsel testified. Id. Petitioner filed a motion for reconsideration of PCR hearing and 59(e) motion on February 3, 2016, which Judge Jefferson denied on April 22, 2016. ECF Nos. 15-9, 15-10. On April 26, 2016, Judge Jefferson filed an order of dismissal. App. 606-12.
Petitioner appealed the denial of his PCR. ECF No. 15-11. On appeal, Petitioner was represented by Appellate Defender Taylor D. Gilliam, Esq., of the South Carolina Commission on Indigent Defense, Division of Appellate Defense. ECF No. 15-12. Attorney Gilliam filed a Johnson Petition for Writ of Certiorari in the South Carolina Supreme Court on December 21, 2016, raising the following issue:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988) (applying the factors of Anders v. California, 386 U.S. 738 (1967) to post conviction appeals). Anders requires that counsel who seeks to withdraw, after examining a case and finding an appeal frivolous, to submit a brief referencing anything in the record that could arguably support an appeal. After giving the defendant an opportunity to respond after receiving a copy of the brief, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited. Anders, 386 U.S. at 744.
Did the PCR Court err in denying Petitioner relief where trial counsel failed to object to the State's "Golden Rule" argument?Id. at 3. Petitioner's counsel asserted the petition was without merit and requested permission to withdraw from further representation. Id. at 10. Petitioner filed a pro se response on January 19, 2017, in which he raised the following issues:
1. Did the P.C.R court erred in denying Petitioner relief where trial counsel failure to request the charge of involuntary manslaughter as a lesser included offense where evidence was presented violate petitioner constitutional right? See T.R. p. 443, line 13 - T.R. P. 444, line 9.
2. Did the P.C.R court erred in denying petitioner relief where trial counsel failure to object trial court jury charge of malice violate petitioner's constitutional right? See T.R. p. 523, line 11 - T.R. p. 525, line 12.ECF No. 15-13 at 6-7 (errors in original). The South Carolina Supreme Court transferred Petitioner's appeal to the Court of Appeals, and on January 23, 2018, the Court of Appeals denied the petition. ECF No. 15-14. The remittitur was issued on February 8, 2018, ECF No. 15-15, and filed with the Charleston County Clerk of Court on February 12, 2018, ECF No. 15-16.
3. Did appellate counsel failure to argue on appeals (Direct Appeals) whether trial court erred in refusing to charge the Jury in the requested charge of self defense violate petitioner's constitutional right?
4. Did P.C.R. failure to allow petitioner the right to present his issues in the witness stand violate petitioner's constitutional right?
5. Did Law enforcement investigators (North Charleston police Department) violate petitioner's constitutional rights?
6. Did trial counsel failure to file pretrial motion pursuant to S.C. Code 16-11-410 - 450 before requesting the charge of self defense, violate petitioner's right to equal protection of the law and immunities, and violate petitioner's 6th and 14th amendments to the U.S. Constitution? See T.R. p. 535, line 9 - T.R. p. 541, line 13.
On March 7, 2018, Petitioner filed a second PCR application alleging ineffective assistance of PCR counsel claims. ECF No. 15-17. On January 3, 2019, the Chief Administrative Judge for the Ninth Judicial Circuit filed a conditional order of dismissal finding that ineffective assistance of PCR counsel claims was not a ground for relief in a PCR, and the PCR application was untimely and successive. ECF No. 15-19. A final order of dismissal was filed on November 22, 2019. ECF No. 15-20.
On December 27, 2019, Petitioner filed this federal petition for a writ of habeas corpus. ECF No. 1. II. Discussion
Because the Petitioner is incarcerated he benefits from the "prison mail box rule" which uses the date a pleading is deposited in the prison mail system as the filing date. Houston v. Lack, 487 U.S. 286 (1988). Petitioner is deemed to have filed his habeas petition on December 27, 2019, because this is the date the petition was deposited in the prison mail system.
A. Federal Habeas Issues
Petitioner states the following grounds in his habeas petition: Ground One: Ineffective assistance of counsel (trial)
Supporting Facts: Trial counsel failed to conduct a reasonable investigation by not seeking expert witness, where there was more than a reasonable amount of drugs in victim's system, as cause of death, that could have exonerated petitioner.Ground Two: Counsel failed to object to State Golden Rule Argument.
Supporting Facts: Ineffective assistance of counsel for failure to object to State's closing argument, by telling jurors to close their eyes and imagine being the victim.Ground Three: Ineffective Assistance of counsel, failure to request charge of Involuntary Manslaughter
Supporting Facts: Petitioner contends that there was no intentionally killing, or malice, nor was there evidence to prove petitioner wanted to cause great bodily harm. Petitioner was trying to get his money back and trying to protect himself from great bodily harm.Ground Four: Ineffective assistance of counsel, failure to preserve a self defense, jury instruction.
Supporting Facts: Counsel requested the charge of self defense, but did not object to the denial. By not denying it the charge was not preserved for later appeals.ECF No. 1 at 5-10.
B. Standard for Summary Judgment
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.
C. Analysis of Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") Bar
1. Habeas Corpus Statute of Limitations
Because Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claim 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). The AEDPA provides that "[a] 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). The statute further provides that "[t]he time during which a properly filed application for State post-conviction or collateral relief with respect to the pertinent judgment or claim that is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2).
2. Petitioner's Application Is Time-Barred
Respondent argues that Petitioner's habeas petition should be dismissed because Petitioner's claims are barred by the statute of limitations. ECF No. 15 at 22-31. The AEDPA's one-year period of limitation begins to run at the "conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Because Petitioner did not seek review by the United States Supreme Court, the AEDPA's one-year statute of limitations began running "at the expiration of the time" for seeking direct review in state court. 28 U.S.C. § 2244(d)(1)(A). Petitioner's judgment of conviction therefore became final "when his time for seeking review with the State's highest court expired." Gonzalez v. Thaler, 565 U.S. 134, 149-52 (2012) (clarifying the Court's prior cases concerning 28 U.S.C. § 2244(d)(1)(A)).
The Court's Gonzalez decision makes it clear that, for a petitioner who did not seek review by filing a petition for writ of certiorari in that Court, no time is added to the expiration of the "time for seeking review from the State's highest court." 565 U.S. at 149-52. The Court contrasted its finding as to § 2244's statute of limitations with its cases interpreting the statute of limitations found in 28 U.S.C. § 2255(f)(1), which is applicable to federal prisoners seeking habeas relief. See 565 U.S. at 149 (noting federal judgment of conviction begins "'when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari,' or, if a petitioner does not seek certiorari, 'when the time for filing the certiorari petition expires.'") (quoting Clay v. United States, 537 U.S. 522, 527 (2003)).
Review of the record indicates Petitioner's federal habeas petition was not timely filed. As previously summarized, Petitioner timely appealed his conviction by filing of a Final Brief of Appellant that was dismissed by the Court of Appeals on December 18, 2013. Petitioner was then required to petition the Court of Appeals for rehearing to pursue review with the South Carolina Supreme Court. See Rule 242(c), SCACR (providing that a decision of the Court of Appeals "is not final for the purpose of review by the Supreme Court until the petition for rehearing or reinstatement has been acted on by the Court of Appeals."). Because Petitioner did not file a petition for rehearing, his conviction became final on January 2, 2014, after the time period for filing a petition for rehearing had expired. See Rule 221(b), SCACR (stating that petitions for rehearing must be actually received by the appellate court no later than fifteen (15) days after the filing of the opinion, order, judgment, or decree of the court). Petitioner's filing of his PCR application on March 27, 2014, tolled the one-year limitations period, see 28 U.S.C. § 2244(d)(2), at which time 83 days had elapsed, leaving 282 days within which Petitioner could timely file a federal habeas petition. The statute of limitations remained tolled until, at the very latest, February 12, 2018, upon the filing of the remittitur in Charleston County after the Court of Appels order denying the petition for writ of certiorari. The statute of limitations expired on November 21, 2018, however, Petitioner did not file his habeas action until December 27, 2019, 401 days after the statute of limitations had run. The filing of Petitioner's second PCR application on March 7, 2018, did not toll the statute of limitations because the state court found the PCR application was untimely and successive. See 28 U.S.C. S 2244(d)(2) (explaining that an improperly filed post-conviction relief action does not toll the one-year limitation period). Accordingly, the instant petition is untimely.
South Carolina district courts have offered varied opinions on whether (1) the decision date, (2) the remittitur date, or (3) the date of receipt of the remittitur controls for purposes of calculating the statute of limitations. See, e.g., Smith v. Warden, Lieber Corr. Inst., No. 4:13-3090-BHH, 2014 WL 5503529, at *6 (D.S.C. Oct. 30, 2014) ("The [PCR] appeal was denied by the South Carolina Supreme Court on April 17, 2013, at which time the statute of limitations resumed."); Johnson v. Warden, Lee Corr. Inst., No. 2:14-cv-0768 DCN, 2015 WL 1021115, at *9 (D.S.C. Mar. 9, 2015) ("The statute of limitations remained tolled during the pendency of the PCR action which began on April 13, 2009, and lasted until the Remittitur for the PCR Appeal was issued on June 20, 2013."); Beatty v. Rawski, No. 1:13-3045-MGL-SVH, 2015 WL 1518083, at *2-6 (D.S.C. Mar. 31, 2015) (holding that the date the remittitur was filed in circuit court should be used for the purposes of calculating the statute of limitations).
3. The Statute of Limitations Should Not Be Equitably Tolled
The AEDPA's statute of limitations is subject to equitable tolling, which could, in effect, extend the final date for filing a habeas petition. Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000). The Fourth Circuit has underscored the very limited circumstances in which equitable tolling of the AEDPA's limitations period will be permitted, holding that a habeas petitioner "is only entitled to equitable tolling if he presents (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) (en banc). Thus, rarely will circumstances warrant equitable tolling of the AEDPA limitations period:
[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.Harris, 209 F.3d at 330. The respondent bears the burden of asserting the AEDPA's statute of limitations, Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002); the petitioner then bears the burden of establishing that his petition is timely or that he is entitled to the benefit of the equitable-tolling doctrine, Rouse, 339 F.3d at 246.
In 2010, the United States Supreme Court considered the issue and also held that § 2254 "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 644-46 (2010); cf. Pace v. DiGuglielmo, 544 U.S. 408, 418 n.8 (2005) (noting Court assumed without deciding that AEDPA's statute of limitations could be equitably tolled for purposes of that decision because respondent assumed it did). The Holland Court reiterated its prior holding in Pace 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, 560 U.S. at 648-49 (quoting Pace, 544 U.S. at 418)).
Petitioner has not alleged and the record does not reflect any extraordinary circumstances to merit equitable tolling. Accordingly, the undersigned recommends the petition be dismissed as untimely. III. Conclusion and Recommendation
Having found that the statute of limitations bars Petitioner's § 2254 petition, the undersigned is precluded from addressing the merits of his claims. See Kornahrens v. Evatt, 66 F.3d 1350 (4th Cir. 1995) (finding that once a claim is determined to be procedurally barred, the court should not consider the issue on its merits).
Based upon the foregoing, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 16, be GRANTED and the Petition be DENIED.
IT IS SO RECOMMENDED. June 16, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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
Post Office Box 2317
Florence, South Carolina 29503
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).