Opinion
C/A No. 8:17-cv-00537-TMC-JDA
10-23-2017
Joshua Ray Greer, Petitioner, v. Laura Caldwell, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on Respondent's motion for summary judgment. [Doc. 8.] Petitioner is a state prisoner who seeks relief under 28 U.S.C. § 2254. 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., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Petitioner, proceeding with the assistance of counsel, filed this Petition for writ of habeas corpus on February 24, 2017. [Doc. 1.] On April 19, 2017, Respondent filed a motion for summary judgment and a return and memorandum to the Petition. [Docs. 7; 8.] Petitioner filed a response in opposition on May 30, 2017 [Doc. 16], and Respondent filed a reply on June 6, 2017 [Doc. 17].
Having carefully considered the parties' submissions and the record in this case, the Court recommends Respondent's motion for summary judgment be granted.
BACKGROUND
Petitioner is confined in the South Carolina Department of Corrections at Tyger River Correctional Institution pursuant to orders of commitment of the Spartanburg County Clerk of Court. [Doc. 1 at 2.] In November 2002, Petitioner was indicted for murder [App. 831-32], and in June 2003, Petitioner was indicted for armed robbery [App. 827-28]. On September 20, 2005, represented by Jason Scott Chehoski, Petitioner proceeded to a jury trial. [App. 1-826.] On September 23, 2005, the jury found Petitioner guilty on both charges. [App. 819.] He received a sentence of thirty years imprisonment on the murder charge and twenty years imprisonment on the armed robbery charge, to run consecutively. [App. 824.]
The Appendix can be found at Docket Entry Numbers 7-1 through 7-4.
Direct Appeal
Petitioner appealed. Joseph L. Savitz, III, of the South Carolina Commission on Indigent Defense filed a brief of appellant on Petitioner's behalf in the South Carolina Court of Appeals, dated April 9, 2007, raising the following issue:
The trial judge committed reversible error by refusing to allow defense counsel to argue that William "Butch" Green - not Joshua Greer - was the actual killer of Paul "Doc" Reagan, as this ruling was in violation of Holmes v. South Carolina, 126 S.Ct. 1727 (2006).[Doc. 7-5 at 4.] The State filed a final brief of respondent, asserting that the issue was procedurally barred from review. [Doc. 7-6.] The South Carolina Court of Appeals affirmed the conviction, concluding that the issue was not preserved for review, in an opinion filed on November 7, 2007. [Doc. 7-7.] Remittitur was issued on November 27, 2007. [Doc. 7-8.]
PCR Proceedings
First PCR Application
Petitioner, proceeding pro se, filed an application for post-conviction relief ("PCR") on August 21, 2008. [App. 834-58.] The PCR application alleged Petitioner was being held in custody unlawfully based on the following grounds:
(a) Ineffective Assistance of Trial Counsel[App. 836.] The State filed a return dated February 20, 2009. [App. 859-63.]
(b) Newly/After Discovered Evidence
(c) Denial of fundamental fairness and Equal Protection when court failed to instruct jury on a charge of a lesser included offense or a defense
(d) Actual Innocence
A hearing was held on May 26, 2009, and Petitioner was represented at the hearing by Franklin M. Mann, Jr. [App. 864-84.] On July 27, 2009, the PCR court filed an order denying and dismissing the PCR application with prejudice. [App. 885-91.] On August 17, 2009, Petitioner filed a pro se notice of appeal with the Spartanburg County Clerk of Court [App. 915-16], but not with the appellate court. The appeal was not perfected. [See Doc. 16 at 2.]
Second PCR Application
On April 13, 2012, Petitioner, proceeding pro se, filed a second PCR application. [App. 892-98.] The PCR application alleged the following grounds:
(a) Denial of right to appeal
(b) Denial of effective assistance of post conviction counsel
(c) Denial of procedural due process[App. 894.] In support of the ground, Petitioner alleged the following facts:
(a) Denial of right to appeal from denial of post-conviction relief[App. 894.] The State filed a return and motion to dismiss, dated August 23, 2013. [App. 901-06.] In the motion to dismiss, the State argued Petitioner's second PCR application should be summarily dismissed as successive and untimely. [App. 901-06.]
(b) Failed to file and perfect P.C.R. Appeal/Failed to file Rule 59(e)
(c) Denial to alter or amend judgement/Denial of right to appeal
On October 4, 2013, the PCR court filed a conditional order of dismissal. [Doc. 907-12.] In the conditional order, the court expressed its intent to summarily dismiss the matter as successive, untimely, and barred by the doctrine of res judicata but granted Petitioner twenty days to show why the order should not become final. [Id.] Petitioner filed a response, arguing that he advised PCR counsel he wished to appeal and that he attempted to file a notice of appeal. [App. 913-14.] On September 16, 2014, the PCR court held a hearing [App. 918-36], and on December 12, 2014, the PCR court filed an order finding Petitioner did not voluntarily waive his right to appeal the first PCR order and granting a belated appeal pursuant to Austin v. State, 409 S.E.2d 395 (S.C. 1991). [App. 937-42.]
As the Supreme Court of South Carolina has explained,
This Court has allowed successive PCR applications where the applicant has been denied complete access to the appellate process. Under the PCR rules, an applicant is entitled to a full adjudication on the merits of the original petition, or "one bite at the apple." This "bite" includes an applicant's right to appeal the denial of a PCR application, and the right to assistance of counsel in that appeal.
An Austin appeal is used when an applicant is prevented from seeking appellate review of a denial of his or her PCR application, such as when an attorney fails to seek timely review.
* * *
Austin appeals are considered "belated appeals" and are used to rectify unjust procedural defects, such as when an attorney does not file a timely appeal.
Kathrine H. Hudgins ("Hudgins") of the South Carolina Commission on Indigent Defense filed on Petitioner's behalf a petition for writ of certiorari in the Supreme Court of South Carolina, dated September 25, 2015. [Doc. 7-9.] The petition asserted the following issue:
Did the PCR judge correctly find that Petitioner is entitled to a belated appeal pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991)?[Id. at 2.] Hudgins also submitted an Austin petition for writ of certiorari, raising the following issue:
Did the PCR judge err in refusing to find trial counsel ineffective for failing to argue third party guilt, failing to preserve for appellate review the trial judge's exclusion of third party guilt evidence and failing to proffer the evidence to prove prejudice in regard to the exclusion of third party guilt evidence?[Doc. 7-10 at 3.] The State filed a return. [Doc. 7-11.] On December 16, 2016, the Supreme Court of South Carolina granted the petition for writ of certiorari with respect to Petitioner's second PCR application and proceeded with an Austin review of the denial of the first PCR application. [Doc. 7-12.] Upon review, the court denied the petition for writ of certiorari from the denial of Petitioner's first PCR application. [Id.] Remittitur was issued on January 4, 2017. [Doc. 7-13.]
Petition for Writ of Habeas Corpus
Petitioner filed this Petition for writ of habeas corpus on February 24, 2017. [Doc. 1.] Petitioner raises the following grounds for relief, quoted substantially verbatim, in his Petition pursuant to 28 U.S.C. § 2254:
GROUND ONE: Denial of Due Process, Abuse of Authority, Reversible error
Supporting Facts: The trial judge committed reversible error by refusing to allow defense counsel to argue that William "Butch" Green, not Joshua Greer, was the actual killer of Paul "Doc" Reagan, as the ruling was contrary to established United States Supreme Court precedent, Holmes v. South Carolina, 126 S. Ct. 1727 (2006).
GROUND TWO: Ineffective assistance of counsel
Supporting Facts: Did the PCR judge err in refusing to find trial counsel ineffective for failing to argue third-party guilt, failing to preserve the issue for Appellate review, the trial judge's exclusion of third-party guilt evidence and failing to
proffer the evidence to prove prejudice in regard to the exclusion of third-party guilt evidence?[Doc. 1 at 6-8.] As stated, on April 19, 2017, Respondent filed a motion for summary judgment. [Doc. 8.] On May 30, 2017, Petitioner filed a response in opposition [Doc. 16], and on June 6, 2017, Respondent filed a reply [Doc. 17]. Accordingly, the motion for summary judgment is ripe for review.
APPLICABLE LAW
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment 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). A fact is "material" if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Habeas Corpus
Generally
Because Petitioner filed the Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claims 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). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or28 U.S.C. § 2254(d). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision," and "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington v. Richter, 562 U.S. 86, 101-02 (2011). Moreover, state court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Procedural Bar
Federal law establishes this Court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person "is in custody in violation of the Constitution or laws or treaties of the United States" and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this Court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (I) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
28 U.S.C. § 2254. The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. Id. § 2254(b)(1)(A). "To satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds for relief be stated in the direct appeal or PCR application. S.C. App. Ct. R. 203; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment. S.C. R. Civ. P. 59(e). Failure to do so will result in the application of a procedural bar to that claim by the Supreme Court of South Carolina. Marlar v. State, 653 S.E.2d 266 (S.C. 2007). Further, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. For direct appeal, a notice of appeal must be filed and served on all respondents within ten days after the sentence is imposed or after receiving written notice of entry of the order or judgment. 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 Ann. § 17-27-45.
In Bostick v. Stevenson, 589 F.3d 160 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007 decision in Marlar, South Carolina courts had not uniformly and strictly enforced the failure to file a motion pursuant to Rule 59(e) as a procedural bar. 589 F.3d at 162-65. Accordingly, for matters in which there was a PCR ruling prior to November 5, 2007, the Court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.
If any avenue of state relief is still available, the petitioner must proceed through the state courts before requesting a writ of habeas corpus in the federal courts. Richardson v. Turner, 716 F.2d 1059, 1062 (4th Cir. 1983); Patterson v. Leeke, 556 F.2d 1168 (4th Cir. 1977). Therefore, in a federal petition for habeas relief, a petitioner may present only those issues that were presented to the Supreme Court of South Carolina through direct appeal or through an appeal from the denial of a PCR application, regardless of whether the Supreme Court actually reached the merits of the claim.
Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner seeks habeas corpus relief based on an issue he failed to raise at the appropriate time in state court, removing any further means of bringing that issue before the state courts. In such a situation, the petitioner has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. See Smith v. Murray, 477 U.S. 527, 533 (1986). The United States Supreme Court has stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See id. Bypass can occur at any level of the state proceedings if a state has procedural rules that bar its courts from considering claims not raised in a timely fashion. Id.
The Supreme Court of South Carolina will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. See S.C. Code Ann. § 17-27-90; Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding in state court. S.C. App. Ct. R. 203(d)(3), 243. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. See Reed v. Ross, 468 U.S. 1, 11 (1984); see also Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995). As the United States Supreme Court explained:
. . . [State procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed, 468 U.S. at 10-11.
However, if a federal habeas petitioner can show both (1) "'cause' for noncompliance with the state rule" and (2) "'actual prejudice resulting from the alleged constitutional violation[,]'" the federal court may consider the claim. Smith, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986). Further, if the petitioner does not raise cause and prejudice, the court need not consider the defaulted claim. See Kornahrens, 66 F.3d at 1363.
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Absent a showing of cause and actual prejudice, a federal court is barred from considering the claim. Wainwright, 433 U.S. at 87. In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman, 501 U.S. at 735 n.1; Teague, 489 U.S. at 297-98; George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the Supreme Court of South Carolina in limited circumstances—where a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or where a "fundamental miscarriage of justice" has occurred, Carrier, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim, where the novelty of the constitutional claim is such that its legal basis is not reasonably available to the petitioner's counsel. Id. at 487-89; Reed, 468 U.S. at 16. Absent a showing of "cause," the court is not required to consider "actual prejudice." Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice to excuse a default. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. Engle v. Isaac, 456 U.S. 107, 134-35 (1982).
Statute of Limitations
Under the AEDPA, petitioners have one year to file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). 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;Id. § 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).
(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.
An application for post-conviction or other collateral review is not properly filed if the application is untimely under state law. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a post conviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)." (alteration in original)). In Pace, the United States Supreme Court held that time limits on filing applications for post-conviction or collateral review are filing conditions, no matter the form of the time limit. Id. at 417. Therefore, if an application for post-conviction or collateral review is barred by a state statute of limitations, statutory tolling under § 2244(d)(2) does not apply because the application was not properly filed.
The Supreme Court recently recognized that the limitations period may be equitably tolled if the petitioner shows (1) he has been diligently pursuing his rights and (2) some extraordinary circumstance stood in his way, preventing him from timely filing his habeas petition. Holland v. Florida, 560 U.S. 631, 648 (2010) (quoting Pace, 544 U.S. at 418). Therefore, "specific circumstances . . . could warrant special treatment in an appropriate case" such that the limitations period is not strictly applied. Id. at 650.
DISCUSSION
Respondent argues the Petition is time barred. [Doc. 7 at 11-14.] Upon review, the Court agrees that the Petition is untimely and Petitioner is not entitled to equitable tolling.
Expiration of Limitations Period
The South Carolina Court of Appeals affirmed Petitioner's conviction on November 7, 2007 [Doc. 7-7], and Petitioner did not seek further review. Consequently, Petitioner had one year from November 26, 2007, fifteen days after the South Carolina Court of Appeals' opinion was filed, to file a federal habeas petition. 28 U.S.C. § 2244(d)(1); Gonzalez v. Thaler, 565 U.S. 134,150 (2012) (holding that a judgment becomes final for purposes of § 2244(d)(1) "when the time for pursuing direct review in [the United States Supreme] Court, or in state court, expires"); Rules 221(a), 242(c), SCACR (establishing that a decision of the South Carolina Court of Appeals is not final for purposes of petitioning the Supreme Court of South Carolina for review until the petitioner has filed a motion for rehearing by the Court of Appeals, and such motion must be filed within fifteen days of the Court of Appeals' decision).
Pursuant to Rule 263(a) of the South Carolina Appellate Court Rules, when calculating time, the last day of the period is to be included "unless it is a Saturday, Sunday or a state or federal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor such holiday." Because the 15-day period for Petitioner to move for rehearing by the Court of Appeals expired on Thursday, November 22, 2007, which was Thanksgiving Day, and Friday, November 23, 2007, was a state holiday, Petitioner had until Monday, November 26, 2007, to timely file a petition for rehearing. --------
Petitioner filed his first PCR application on August 21, 2008 [App. 834-58], such that 269 days of the one-year limitations period had expired before Petitioner filed his PCR application. The one-year period in which to file a federal habeas petition is tolled during the pendency of a PCR application or other collateral relief properly filed in state court, 28 U.S.C. § 2244(d)(2), and thus, the statute of limitations was tolled during the period the PCR application was pending—from August 21, 2008, until August 26, 2009, the date after which Petitioner could not appeal the order dismissing his first PCR application. See Rule 203(b)(1), SCACR ("Appeals From the Court of Common Pleas. A notice of appeal shall be served on all respondents within thirty (30) days after receipt of written notice of entry of the order or judgment."); [App. 885-91 (PCR court's order of dismissal filed July 27, 2009)]. Therefore, the one-year limitations period began to run again on August 26, 2009, and expired 96 days later on November 30, 2009.
Petitioner filed his second PCR application on April 13, 2012 [App. 892-98], well after the limitations period expired. Even though Petitioner was granted a belated Austin appeal of the dismissal of his first PCR application, because Petitioner's second PCR application was filed outside the AEDPA limitations period, it did not additionally toll the one-year limitations period. See McHoney v. South Carolina, 518 F.Supp.2d 700, 705 (D.S.C. 2007) (finding that no collateral action was "pending," as defined by the AEDPA, during the time between the state court's initial denial of the PCR application and the state court's allowance of a belated appeal of that PCR application and thus the AEDPA's limitations period was not tolled during this time); see also Israel v. McCall, No. 3:11-2999-JMC, 2012 WL 3877669, at *2 (D.S.C. Sept. 6, 2012) (collecting cases for the proposition that "the statute of limitations is not tolled after an initial PCR is concluded and the filing of an Austin PCR because there is no proceeding pending during that time). Accordingly, the Petition is time barred.
Equitable Tolling/Gateway Actual Innocence Claim
Petitioner acknowledges that his Petition was filed after the one-year limitations period expired; however, Petitioner argues the statute of limitations should be equitably tolled because he is actually innocent and has newly discovered evidence supporting his innocence. [Doc. 16 at 6-7.] For the reasons explained below, the Court disagrees.
A habeas corpus petitioner's failure to comply with the statute of limitations may be excused if he presents newly-discovered, reliable evidence of his actual innocence. McQuiggin v. Perkins, — U.S. —, —, 133 S.Ct. 1924, 1928 (2013). In McQuiggin, the Supreme Court held that
actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup [v. Delo, 513 U.S. 298 (1995)] and House [v. Bell, 547 U.S. 518 (2006)], or, as in this case, expiration of the statute of limitations. We caution,
however, that tenable actual-innocence gateway pleas are rare: "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup, 513 U.S., at 329, 115 S.Ct. 851; see House, 547 U.S., at 538, 126 S.Ct. 2064 (emphasizing that the Schlup standard is "demanding" and seldom met). And in making an assessment of the kind Schlup envisioned, "the timing of the [petition]" is a factor bearing on the "reliability of th[e] evidence" purporting to show actual innocence. Schlup, 513 U.S., at 332, 115 S.Ct. 851.McQuiggin, 133 S.Ct. at 1928 (some alterations in McQuiggin). The Court explained, "a federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas petitioner's part, not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been reliably shown." Id. To establish actual innocence, a petitioner would have to show "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).
As his new evidence of actual innocence, Petitioner asserts he has located a new, reliable eyewitness who was unavailable at trial and who can provide testimony to substantiate Petitioner's claims of innocence and establish Petitioner's claims of third party guilt. [Doc. 16 at 6.] As an initial matter, Petitioner has not provided the Court with any specific information, in the form of an affidavit or otherwise, regarding the testimony this eyewitness may provide. Moreover, even assuming the eyewitness would testify that Petitioner did not commit the murder and that William "Butch" Green committed the murder, such new evidence does not rise to the level required by Schlup and McQuiggin. Petitioner has not shown that it is more likely than not that no reasonable jury would have convicted him in light of such evidence.
Petitioner's confession statement was read at trial:
This is the voluntary statement of Joshua Greer, age 23, August 21st, 2002. It provides Mr. Greer's address, his telephone number. It starts, "On Tuesday, 8/19/02, around 2:30 a.m. I went down to Doc's house at Deno's wood lot. I went down there to use the phone to call Mark Greer about picking me up. Butch was at Doc's. Butch leaves, I use the phone. I called information, parenthesis, 411, to get the number to Cocktails and Dreams. I tried to call the bar several times and finally talked to Mark. I told him that I wanted to go back out with them and he could pick me up at his house. He said that that was fine. I asked Doc for $20 and I would pay him back with two," here is a correction, it was packs and it was changed to cartons of cigarettes. "Doc gave me $20. Doc said something like better yet, you can suck my dick. Doc was sitting on a couch and I was in a chair in front of the door. Doc got up and walked beside me. He picked up something that looked like a big old rusted butcher knife or hedge trimmers. He pointed," correction, them, again initialed by both myself and Mr. Greer, "at me. I reached over and grabbed the hammer and kept it at my side. He kept poking me with the blade, and I got up and hit him with the hammer in the head, probably in the right. He fell on the couch. I grabbed Doc's wallet out of his shirt, shorts, and took $40 out of it. I leave with the hammer and tossed it in a woodpile behind Deno's house. I went to Mark's house and sat for a little bit. I was walking to Deno's house to call Mark but as I turned off River Street they pulled up. I never told Mark or Joey what had happened. We went back to Cocktails and Dreams. We went and bought some more crack. I told them that I had got it on front but I had paid for it with money I got out of Doc's wallet. End of statement. This statement was written by Investigator Yown as I Joshua Ray Greer told him what to write."[App. 286:4-87:18.] The details in the confession were further corroborated at trial. A hammer was found outside the house in a woodpile [App. 373:22-74:6], and the victim's blood was found on the hammer [App. 526:6-27:12]. The victim's wallet was found under the couch with his identification in it but no money. [App. 369:1-11.] A phone call was placed around 2:50 a.m. from the victim's phone to information and then immediately multiple calls were placed from the victim's phone to Cocktails and Dreams. [App. 359:5- 61:8.] Joseph Blackwell and Mark Greer testified that Petitioner went home and then they later picked him up on River Street and went to buy crack. [App. 427:2-30:25; 441:20-47:7.] Mark Greer also testified that he talked to Petitioner the next day, and Petitioner wanted to make sure their stories matched up. [App. 447:25-48:18.]
On the other hand, evidence was introduced at trial that police found bloody footprints leaving the crime scene and a trail of blood leading toward William "Butch" Green's trailer; however, they never found any blood on Petitioner's shoes. [App. 521:7-23:13; 533:15-34:7; 763:4-9.] Further, police never found any blood on Petitioner's clothes. [App. 334:7-23; 648:12-21; 766:18-67:10.] Finally, they did not find Petitioner's fingerprints on the murder weapon or on the victim's wallet. [410:12-14; 493:24-94:12; 495:3-11; 762:7-16.]
When considering the new evidence combined with prior evidence, the Court finds that Petitioner has not shown that it is more likely than not that no reasonable jury would have convicted him. Therefore, the Court determines the Petition should be dismissed as time barred.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion for summary judgment be GRANTED and the Petition be DENIED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge October 23, 2017
Greenville, South Carolina
Odom v. State, 523 S.E.2d 753, 755-57 (S.C. 1999) (citations and footnote omitted).