Opinion
C/A 1:23-3203-JD-SVH
02-26-2024
Joshua Lee Phillips, Petitioner, v. Warden of Broad River Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Joshua Lee Phillips (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(b)(i)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends this matter be dismissed without service of process.
I. Factual and Procedural Background
Petitioner was indicted by the Marion County Grand Jury at the February 2008 term for two counts each of murder and armed robbery and one count of possession of a weapon during the commission of a violent crime. He proceeded to trial and was found guilty. Petitioner was sentenced to consecutive terms of confinement for life on each count of murder, plus concurrent terms of 30 years each for each count of armed robbery, and five years for the gun count. Petitioner's conviction and sentence were affirmed on February 29, 2012. See State v. Phillips, No. 2012-UP-143, 2012 WL 10841277, at *1 (S.C. Ct. App. Feb. 29, 2012). The remittitur was issued on March 16, 2012.
The court takes judicial notice of Petitioner's criminal and ensuing post-conviction relief (“PCR”) cases. See https://publicindex.sccourts.org/Marion/ PublicIndex/PISearch.aspx (last visited August 31, 2023, search terms “2008GS3300071” and “Joshua Lee Phillips”). This court may take judicial notice of the prior cases. Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); see also 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.'”); Mann v. Peoples First Nat'l Bank & Trust Co., 209 F.2d 570, 572 (4th Cir. 1954) (approving district court's taking judicial notice of prior suit with same parties).
Petitioner represents he appealed the South Carolina Court of Appeal's dismissal of his direct appeal to both “the court of common pleas” and the United States Supreme Court, but there is no record supporting Petitioner's representation, nor has Petitioner provided any further information on this issue. [See ECF No. 1 at 2-3].
Petitioner's PCR application was filed on May 24, 2012, and dismissed on January 29, 2018. On appeal, the PCR court's decision was affirmed. The remittitur was dated November 16, 2021, and filed on November 18, 2021.
Petitioner raises the following grounds in his federal petition:
1) At trial, although Petitioner did not testify, his defense was of alibi and that he was not involved in the case nor was he present at the commission of crime. A purported eyewitness, Jacqueline Love testified that three were only two people “at the most” in the car with Petitioner. Consuela Smith and Jason Phillips both testified that Petitioner was the fourth person in their automobile. Based on this evidence maybe there were only two people in the car. If that the case, then maybe Petitioner wasn't in the building.
2) [Following discussions between two jurors and a witness], [a]n actual hearing on the content of the conversation was never held nor did Petitioner's attorney request[] that a hearing be held.
3) [Ineffective Assistance of Counsel: Failure to call alibi witnesses].
4) Trial Counsel failed to object to the Judge's final instructions to the jury by not requesting the jury be charged on the defense of alibi ....
5) Trial judge erred by not holding a hearing on pre-jury deliberation.
6) Trial counsel erred in dissuading [P]etitioner from testifying at trial regarding his alibi defense and in failing to present alibi testimony from alibi witnesses ....
7) Trial counsel was ineffective for failing to object to Petitioner wearing a stun belt during trial.
8) PCR counsel was ineffective for failing to call alibi witnesses to testify at PCR hearing when alibi witnesses were available to testify.[ECF No. 1].
Petitioner filed the petition on July 5, 2023. In the section of the petition directing Petitioner to address the timeliness of the petition, he states as follows:
On or around May 18, 2022, I mailed a complete petition under 28 U.S.C. 2254 for writ of habeas corpus but the courts said that they never received it. I refiled another writ of habeas corpus once more and the court said that they have not received anything. I have supporting documents attached to this petition.
I filed the petition timely but due to the ongoing investigation and cruel and unusual punishment that I've been going through my mail was either withheld or misplaced and never sent out ....[ECF No. 1 at 27-28, see also ECF No. 1-1 (“Due to the cruel and unusual punishment, investigations and staff picking . . . and the denial of me sending out legal mail and making copies, I respectfully ask the court to allow my petitioner .... I hope and pray[] that this document reaches your office because this is the 3rd time I've filed this petition and have not heard anything ....].
Plaintiff has included two documents, both authored by him, in support of his petition. [ECF No. 1-2]. One is stamped as received, presumably by this court, on December 19, 2022, in which Plaintiff states in part that his “federal habeas and PCR application was not mailed out on 3 separate occasions, and I still haven't had a response about my federal habeas petition being filed.” Id. at 3. Plaintiff also includes a second letter, received by this court on July 7, 2022, stating he had mailed a habeas corpus petition on May 18, 2022, and had not been informed if it had been processed. Id. at 6.
Plaintiff has filed numerous cases in the past with this court, all brought pursuant to 42 U.S.C. § 1983 and all dismissed at his request or for failure to prosecute. See, e.g., Phillips v. Pattman, C/A No. 1:19-03533-JD-SVH, 2021 WL 3464176, at *1 (D.S.C. Aug. 6, 2021) (dismissed for failure to prosecute). However, Petitioner did not file in those cases the documents currently submitted by him in support of his petition and the court otherwise has no record of his mailings.
On August 31, 2023, the undersigned issued an order identifying the untimeliness of the petition and permitting Petitioner an opportunity to provide facts concerning the issue of timeliness that would provide a basis for the application of equitable tolling and thereby potentially prevent dismissal based on the limitations bar. Plaintiff submitted documentation showing he was debited for postage on May 16, 2022. [ECF No. 22].
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dept of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
1. The Habeas Petition is Untimely
The AEDPA substantially modified procedures for consideration of habeas corpus petitions of state inmates in the federal courts. One of those changes was the amendment of 28 U.S.C. § 2244 to establish a one-year statute of limitations for filing habeas petitions. Subsection (d) of the statute provides:
(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 limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d) (emphasis added).
Because Petitioner did not file a petition for rehearing regarding his direct appeal or seek discretionary review in the South Carolina Supreme Court, his conviction became final fifteen days after his conviction and sentence were affirmed on February 29, 2012. See, e.g., Lopez v. Warden of Tyger River Corr Inst., C/A No. 9:22-00250-MGL-MHC, 2022 WL 18457734, at *7 n.4 (D.S.C. Dec. 8, 2022) (collecting cases), report and recommendation adopted, C/A No. 9:22-CV-00250-MGL, 2023 WL 387608 (D.S.C. Jan. 25, 2023).
Therefore, Petitioner's conviction became final for the purposes of 42 U.S.C. § 2244(a) on March 15, 2012. The statute of limitations was tolled while Plaintiff's PCR review was pending, from May 24, 2012, to November 18, 2021, when remittitur was issued.
It appears Plaintiff may have filed an additional PCR application on September 7, 2022, with the Marion County Court of Common Pleas. However, no action has been taken by the court regarding this application. Additionally, “[a]n application for relief filed pursuant to this chapter must be filed within one year after the entry of a judgment of conviction or within one year after the sending of the remittitur to the lower court from an appeal or the filing of the final decision upon an appeal, whichever is later.” S.C. Code Ann. § 17-27-45(A). Petitioner's one year limitations period to file a PCR application expired on March 16, 2013, one year after the South Carolina Court of Appeals issued its remittitur. Therefore, Petitioner's additional PCR application was not timely under state law and therefore not “properly filed” for purposes of 42 U.S.C. § 2244(d)(2). See, e.g., Thomas v. McKendley Newton, Jr., C/A No. 2:19-3179-MBS, 2021 WL 1134759, at *11 (D.S.C. Mar. 24, 2021).
Therefore, to be timely, Plaintiff had until September 9, 2022, to file his habeas petition. Plaintiff did not mail the instant petition until June 29, 2023, almost 10 months out of time. Accordingly, Petitioner's habeas petition is untimely under 28 U.S.C. § 2244(d).
The court received and docketed the petition on July 5, 2023. [ECF No. 1]. Because Petitioner is incarcerated, he benefits from the “prison mailbox rule.” Houston v. Lack, 487 U.S. 266 (1988). The petition includes a date stamp reflecting “received June 29 2023 BRCI mailroom.” [ECF No. 1-3 at 1]. Therefore, the court construes the petition as having been filed on June 29, 2023.
2. Equitable Tolling
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, 209 F.3d at 329-30. 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.
In 2010, the United States Supreme Court considered the issue and also held that § 2244 “is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). The Holland Court reiterated its prior holding 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 649. An inmate asserting equitable tolling “‘bears a strong burden to show specific facts'” demonstrating that he fulfills both elements of the test. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008)).
Here, Petitioner claims he attempted to mail a habeas petition on May 18, 2022, in addition to another undisclosed time, presumably before December 19, 2022. Petitioner argues that both the mail was not sent and that the court informed him that the mail was not received, but he has failed to provide documentation supporting these assertions. Documentation provided by Petitioner indicates only that he was debited for postage on May 16, 2022, and that Petitioner has represented in letters, presumably to this court, that he attempted unsuccessfully to mail petitions. Petitioner also makes vague references to trying circumstances, but does not indicate what, if any, extraordinary circumstances prevented him from timely filing his petition. See, e.g., Howard v. Stephan, C/A No. 1:21-3356-RMG, 2022 WL 122963, at *2 (D.S.C. Jan. 13, 2022) (citing Washington v. Ollison, No. C 06-4490 SI (pr), 2007 WL 1378013, at *3-4 & n.3 (N.D. Cal. May 9, 2007) (finding § 2254 motion timely filed because petitioner presented the court with prison mail logs, contemporaneous inmate appeals complaining about lost mail, and inmate trust account statements concerning postage, but noting that the “they lost my mail” argument normally fails for purposes of equitable tolling)); Kissi v. U.S., C/A No. AW-12-1944, 2012 WL 3156834, at *1 (D. Md. Aug. 2, 2012) (holding self-serving and unsubstantiated assertions of lost mail fail to demonstrate diligent pursuit of rights or extraordinary circumstance); Ferrell v. Perritt, C/A No. 5:15-HC-2013-D, 2016 WL 591766, at *3 (E.D. N.C. Feb. 12, 2016) (“Moreover, even if Ferrell's petitions were lost or destroyed in the mail, lost mail is not extraordinary.”).
Similarly, Petitioner has not shown he has been diligently pursuing his rights, as he waited almost a year since his last alleged communication with the court in July 2022 to file the instant petition. The diligence detailed by the petitioner in Holland stands in marked contrast to Petitioner's allegations here. See 560 U.S. 635-44. Holland provided the courts with a detailed description of his efforts to pursue habeas relief. See id. From that description, the Supreme Court was able to conclude that Holland acted with sufficient diligence because:
Holland not only wrote his attorney numerous letters seeking crucial information and providing direction; he also repeatedly contacted the state courts, their clerks, and the Florida State Bar Association in an effort to have Collins-the central impediment to the pursuit of his legal remedy-removed from his case. And, the very day that Holland discovered that his AEDPA clock had
expired due to Collins' failings, Holland prepared his own habeas petition pro se and promptly filed it with the District Court.Id. at 653.
Based on the information before the court, the undersigned finds that equitable tolling of the statute of limitations is not merited. Petitioner has not submitted any facts showing he meets the Holland test. Based upon the foregoing, the undersigned recommends the petition be dismissed because it was not timely filed and is barred by 28 U.S.C. § 2244(d)(1).
IT IS SO RECOMMENDED.
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
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).