Opinion
C/A 0:21-19-DCC-PJG
06-04-2021
Robert Heydman, Petitioner, v. Charles Williams, Respondent.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Petitioner Robert Heydman, a self-represented state prisoner, filed a 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) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the respondent's motion for summary judgment. (ECF No. 11.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised the petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the respondent's motion. (ECF No. 12.) Heydman filed a response in opposition. (ECF No. 21.) Having carefully considered the parties' submissions and the record in this case, the court finds that Heydman's Petition is barred by 28 U.S.C. § 2244(d) as untimely.
BACKGROUND
Heydman was indicted in 2007 in Spartanburg County for murder. (App. at 497, ECF No. at 143-44.) Heydman was represented by William H. McPherson, Esquire, and on September 24-26, 2008 was tried before a jury and found guilty as charged. (App. at 1-414, ECF No. 10-1 at 3-60.) The circuit court sentenced Heydman to life imprisonment.
Heydman timely appealed and was represented by Joseph L. Savitz, III, Esquire, who filed an Anders brief on Heydman's behalf. (ECF No. 10-3 at 1-7.) On June 8, 2011, the South Carolina Court of Appeals dismissed Heydman's appeal. (Id. at 11-12.) The remittitur was issued on June 24, 2011. (Id. at 13.)
Anders v. California, 386 U.S. 738 (1967), requires that counsel who seeks to withdraw after finding the “case to be wholly frivolous” following a “conscientious examination” must submit a brief referencing anything in the record that arguably could support an appeal; furnish a copy of that brief to the defendant; and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited. Anders, 386 U.S. at 744.
Heydman filed a pro se application for post-conviction relief (“PCR”) on July 8, 2011. (Heydman v. State of South Carolina, 2011-CP-42-2966, App. at 416-22, ECF No. 10-2 at 61-68.) On April 4, 2013, the PCR court held an evidentiary hearing at which Heydman testified and was represented by F. Milton Mann, Esquire. (App. at 464-89, ECF No. 10-2 at 110-35.) By order filed July 26, 2013, the PCR court dismissed Heydman's PCR application with prejudice. (ECF No. 10-4.)
Counsel for Heydman, Lara M. Caudy, Esquire, Appellate Defender for the South Carolina Commissioner on Indigent Defense, petitioned for a writ of certiorari on February 7, 2014. (ECF No. 10-5.) On September 24, 2014, the South Carolina Supreme Court denied Heydman's petition for a writ of certiorari. (ECF No. 10-7.) The remittitur was issued October 10, 2014 and filed with the Spartanburg County Clerk of Court on October 14, 2014. (ECF Nos. 10-8 & 10-9.)
Heydman filed a second pro se application for post-conviction relief on September 14, 2018 (“2018 PCR”). (Heydman v. State of South Carolina, 2018-CP-42-3180, ECF No. 10-10.) The State filed a return and motion to dismiss. (ECF No. 10-11.) The PCR court entered a Conditional Order of Dismissal on September 15, 2020 in which it provisionally denied and dismissed Heydman's 2018 PCR application as barred by the doctrine of res judicata, successive to his prior PCR application, and untimely under the limitations provision of the Uniform Post-Conviction Procedure Act, SC Code Ann. § 17-27-45(A). (ECF No. 10-12.) Heydman filed a pro se response to the conditional order of dismissal. (ECF No. 10-13.) As of the date of this Report and Recommendation, Heydman's 2018 PCR application remains pending.
Heydman filed his federal Petition for a writ of habeas corpus on December 21, 2020. (ECF No. 1.)
FEDERAL HABEAS ISSUE
Heydman's federal Petition for a writ of certiorari raises the following issue, quoted verbatim:
Ground One: The petitioner's after-discovered evidence claim of subject matter jurisdiction that deprived the court of its power to adjudicate application case. The absence of an indictment is a jurisdictional.(Pet., ECF No. 1.)
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “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.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly 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. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Statute of Limitations
The respondent argues that Heydman's Petition is untimely under the one-year statutory deadline set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The one-year time period runs from the latest of “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A); see Gonzalez v. Thaler, 565 U.S. 134 (2012). Because Heydman filed a direct appeal, his conviction became final on September 6, 2011-the expiration of the time in which Heydman could have timely filed a petition for a writ of certiorari with the United States Supreme Court. See Gonzalez, 565 U.S. at 150; 28 U.S.C. § 1257 (“Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari . . . .”); U.S. Sup. Ct. R. 13 (stating that the time period for a petition for a writ of certiorari is 90 days from date of entry of the decision or judgment of a state court of last resort, or 90 days from the date of denial or entry of judgement on a petition for rehearing); Reddock v. Ozmit, C/A No. 3:09-204-RBH, 2010 WL 568870, at *5 (D.S.C. Feb. 11, 2010) (stating, as dicta, that in light of the holding in State v. Lyles, “it now appears that it would be possible to seek certiorari review from the United States Supreme Court directly from the state court of appeals' Anders dismissal because now under state procedure the South Carolina Court of Appeals is ‘the highest court of a State in which a decision could be had' ”); State v. Lyles, 673 S.E.2d 811, 812 (S.C. 2009) (holding that the South Carolina Supreme Court would no longer consider petitions for writs of certiorari where the South Carolina Court of Appeals dismissed the petitioner's direct appeal after Anders review). Accordingly, the limitations period began to run on September 7, 2011, and expired September 6, 2012, unless the period was at any time tolled for any properly filed state PCR application. 28 U.S.C. § 2244(d)(2); see also Hernandez v. Caldwell, 225 F.3d 435, 438-39 (4th Cir. 2000) (applying the anniversary date method in calculating the one-year limitation period in § 2244 and concluding that “the actual count on the limitations period began on April 25, 1996, and ended on April 24, 1997, excluding any time tolled”); United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003) (holding that the one-year limitation period in AEDPA should be calculated using the anniversary date method even when the intervening period includes a leap year).
Heydman filed his first state PCR application on July 8, 2011-prior to the commencement of ADEPA's limitations period. The period of limitations was tolled during the pendency of the 2011 PCR action until October 10, 2014, when the South Carolina Supreme Court issued the remittitur from its order denying Heydman's petition for a writ of certiorari. Accordingly, Heydman had until October 12, 2015 to file a timely federal habeas petition.
The court has used the date that the remittitur was issued. See Gonzalez, 565 U.S. at 152 n.10 (distinguishing between the provisions of § 2244(d)(2) and (d)(1)); see also Rule 221(b), SCACR. However, out of an abundance of caution, even considering the date that the remittitur was filed with the Spartanburg County Clerk's office, Heydman's Petition was still untimely filed. See Beatty v. Rawski, 97 F.Supp.3d 768, 772-76 (D.S.C. 2015) (tolling the statutory deadline until the remittitur is filed in the county clerk's office).
October 10, 2015 was a Saturday; therefore, Heydman had until Monday, October 12, 2015 to file his federal habeas petition. See Fed.R.Civ.P. 6(a)(3); see also Rules Governing § 2254 Cases, Rule 11, 28 U.S.C. foll. § 2254 (“The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”).
Heydman filed a second state PCR application on September 14, 2018. However, this application did not toll the statute of limitations for the instant federal Petition because it was filed after the expiration of the one-year limitations period under § 2244(d)(1)(A). To toll the one-year statute of limitations period governing federal habeas petitions, state PCR proceedings must commence prior to the expiration of the federal statutory period. See 28 U.S.C. § 2244(d). Thus, Heydman's 2018 PCR application did not toll or revive the already expired statute of limitations for filing his federal habeas action. Heydman's federal Petition was filed on December 21, 2020-over five years after the expiration of the statute of limitations.
Accordingly, even though a final order has yet to be issued in Heydman's 2018 PCR Action, such order would have no bearing on the statute of limitations calculation.
See Houston v. Lack, 487 U.S. 266 (1988) (stating that a prisoner's pleading is filed at the moment of delivery to prison authorities for forwarding to the district court).
C. Heydman's Arguments
Heydman responds in opposition to the respondent's motion for summary judgment, but his response focuses primarily on the grounds raised in his habeas petition. (Petr.'s Resp. Opp'n Summ. J., ECF No. 21.) He does, however, make a one-sentence argument that he is “actually innocent and was put to trial” without an indictment, which he argues resulted in a miscarriage of justice. (Id. at 3.)
1. Equitable Tolling
To avoid application of the statute of limitations to the instant federal habeas corpus Petition, Heydman must show that the one-year limitations period should be equitably tolled under applicable federal law. See Holland v. Florida, 560 U.S. 631 (2010) (concluding that § 2244(d) is subject to the principles of equitable tolling); Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000) (same). “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Holland, 560 U.S. at 649. Equitable tolling is available only in “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.” Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003) (en banc) (internal quotation marks and citation omitted); see also United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). Thus, to be entitled to equitable tolling, an otherwise time-barred petitioner must present: “(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time.” Rouse, 339 F.3d at 246.
Heydman has not established grounds for equitable tolling and has utterly failed to show that he has been diligently pursuing his rights. See Harris, 209 F.3d at 330 (“Under long-established principles, petitioner's lack of diligence precludes equity's operation.”); Pace, 544 U.S. at 419 (denying equitable tolling to a habeas petitioner who waited years to file his PCR petition and months after his PCR trial to seek relief in federal court). The undisputed record shows that Heydman waited over five years after the conclusion of his 2011 PCR action to file his federal habeas petition. Although not argued by Heydman, the law is clear that limited knowledge and access to the law do not warrant equitable tolling. See Cross-Bey v. Gammon, 322 F.3d 1012, 1015 (8th Cir. 2003) (rejecting equitable tolling where a petitioner alleged lack of legal knowledge or legal resources); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well established that ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.”) (internal quotation marks & citations omitted); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (“Owens is young, has a limited education, and knows little about the law. If these considerations delay the period of limitations until the prisoner has spent a few years in the institution's law library, however, then § 2244(d)(1) might as well not exist; few prisoners are lawyers.”); Jones v. South Carolina, C/A No. 4:05-2424-CMC-TER, 2006 WL 1876543, at *3 (D.S.C. June 30, 2006) (“Other courts addressing equitable tolling have found that ‘extraordinary circumstances' are not: having an inadequate law library, . . . claims of actual innocence, reliance on other inmates' advice, ignorance of the AEDPA filing deadline, or even (in some instances) petitioner illness.”). Accordingly, this court cannot say that Heydman has been pursuing his rights diligently. See Harris, 209 F.3d at 330; see also Pace, 544 U.S. at 419 (denying equitable tolling to a habeas petitioner who waited years to file his PCR petition and months after his PCR trial to seek relief in federal court).
2. Actual Innocence
To the extent Heydman asserts that the federal statute of limitations should be tolled due to a “miscarriage of justice” that has occurred because he is actually innocent, such an argument fails. While the United States Supreme Court has held that “actual innocence, if proved, may serve as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or . . . expiration of the statute of limitations, ” the Court cautioned that “tenable actual-innocence gateway pleas are rare.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). To present a credible claim of actual innocence, a petitioner must present “new reliable evidence-whether it be exculpatory evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). “[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.” Id. at 329; see House v. Bell, 547 U.S. 518, 538 (2006) (reiterating that the Schlup standard “is demanding and permits review only in the extraordinary case”) (internal quotations omitted). The McQuiggin Court also noted that “ ‘the timing of the [petition]' is a factor bearing on the ‘reliability of th[e] evidence' purporting to show actual innocence, ” and “[u]nexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing.” McQuiggin, 569 U.S. at 386, 399 (quoting Schlup, 513 U.S. at 332) (alterations in original).
It appears that Heydman's “actual innocence” argument may stem from the ground raised in his federal Petition in which he argues that his indictment was defective and thus deprived the trial court of jurisdiction. (See generally Pet., ECF No. 1.) However, based on the record presented, it is clear that Heydman cannot rely on an allegedly defective indictment as “new reliable evidence.” Even if the charging document could be considered “evidence” within the meaning of Schlup, which is dubious, it clearly was substantially available to Heydman prior to his trial, or, at the very least, well before the expiration of his limitations deadline. McQuiggin, 569 U.S. at 386-87, 398-99; Holland, 560 U.S. at 649; Pace, 544 U.S. at 418-19; Harris, 209 F.3d at 330. Heydman also appears to rely on evidence in the form of a July 2017 letter from the South Carolina court administration and accompanying printout from the state court website showing the terms of general sessions court for Spartanburg County in August and September of 2007. (ECF No. 21-3 at 2.) Heydman argues that this calendar proves the grand jury never met in August; however, the court administration's letter indicates only that general sessions court is depicted on the calendar. (ECF No. 21-3 at 1.) Thus, Heydman's reliance on this printout as new evidence to demonstrate that the grand jury did not convene is not probative to establish that his indictment was fraudulently issued.
Similarly, to the extent Heydman's argument could be construed to assert that his “newly discovered evidence” should delay the commencement of the limitations period pursuant to § 2244(d)(1)(D), the court finds this argument to be without merit.
It also appears that this evidence from the court's publicly available website was substantially available to Heydman before the expiration of his limitations deadline.
RECOMMENDATION
Based upon the foregoing, the court finds that, to the extent Heydman raises an argument of actual innocence, Heydman has failed to meet the demanding standard that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup, 513 U.S. at 327. Accordingly, any such claim is insufficient to overcome the court's finding that his Petition was untimely filed and is therefore barred pursuant to § 2244(d)(1). Nor has Heydman presented grounds that would entitle him to equitable tolling. The court therefore recommends that the respondent's motion for summary judgment (ECF No. 11) be granted and Heydman's Petition dismissed as untimely.
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
901 Richland Street
Columbia, South Carolina 29201
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).