Opinion
C/A 5:22-499-BHH-KDW
11-16-2022
Yolanda Thompson, Petitioner, v. Warden of Leath Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE
Yolanda Thompson (“Petitioner”) is an inmate incarcerated at the Camille Graham Correctional Center of the South Carolina Department of Corrections. She 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) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 32, 33. On July 26, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Motion for Summary Judgment and the possible consequences if she failed to respond adequately to Respondent's Motion. ECF No. 34. On August 15, 2022, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 37. Petitioner filed a second Response in Opposition to Respondent's Motion for Summary Judgment on September 22, 2022. ECF No. 41. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 33, be granted, and this Petition be denied.
Petitioner lists the Warden of Leath Correctional Institution as Respondent, however, the proper respondent in a habeas corpus action is a prisoner's custodian. Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004). Accordingly, the Clerk of Court is directed to terminate the Warden of Leath Correctional Institution as a respondent in this action, and to add the Warden of Camille Graham Correctional Center as Respondent.
I. Procedural Background
Petitioner was indicted by the Union County grand jury during the March 2008 term of court for murder, and during the February 2009 term of court for armed robbery, kidnapping, possession of a knife during the commission of a violent crime, and criminal conspiracy. App. 4, 119-30. On March 6, 2009, Petitioner appeared before Judge Lee Alford for a plea hearing. App. 1-66. Petitioner was represented by Attorney Harry Dest, Esquire, and Assistant Solicitor Kevin Brackett appeared on behalf of the State. Id. At the start of the proceedings, Solicitor Brackett informed the court that the State and Petitioner had entered into a plea agreement. App. 5. Under the terms of the agreement, the State agreed to not seek the death penalty against Petitioner in exchange for Petitioner's cooperation in the prosecution of co-defendant Pernell Thompson, who was Petitioner's husband. Id. Petitioner also agreed to enter pleas of guilty to the indicted charges with the understanding that she could be sentenced to up to life in prison. App. 5-6. The court then questioned Petitioner about her education and her understanding of her charges and potential sentences. App. 8-10. Petitioner indicated she understood the potential sentences she was facing and informed the court she wished to plead guilty to the pending charges. App. 10-11. Petitioner also stated she understood her constitutional rights and that she was waiving those rights by pleading guilty. App. 11-12. Petitioner also affirmed her understanding of the terms of her plea agreement. App. 12-13. Solicitor Brackett then presented the following facts: On January 3, 2008, around 9:30 p.m., sixteen-year-old Marisha Jeter (“Victim”) told her dad she was going to McDonald's. App. 15. Earlier that evening Victim was contacted by Pernell Thompson (“Thompson”). Id. Victim and Thompson had previously been involved in a relationship which was a source of friction between Petitioner and Thompson. Id. Earlier, there had been a confrontation between Petitioner, Thompson, and Victim's father, and at her father's insistence, the relationship between Thompson and Victim had ended. Id. On the night of March 6, Thompson called Victim and asked her to return an item of clothing she still had in her possession. App. 1516. Victim agreed to meet Thompson behind the YMCA. App. 16. When Victim arrived at the YMCA parking lot, Thompson and Petitioner attacked her, beating her and stabbing her multiple times. Id. Thompson and Petitioner then placed Victim in the trunk of her car and drove the car to a bridge. Id. The pair partially stripped Victim and placed her body by the side of the river to make it appear like she had been sexually assaulted. Id. Petitioner and Thompson then drove Victim's car to another location where they set the vehicle on fire. Id. Victim died as a result of the stab wounds. Id. After the solicitor recited the facts of the case, Petitioner indicated the facts recited by the solicitor were correct. App. 18. Petitioner entered a guilty plea to murder, armed robbery, kidnapping, possession of a knife during the commission of a violent crime, and criminal conspiracy. Id. The court sentenced Petitioner to 5-years imprisonment on the criminal conspiracy charge, and deferred sentencing of the other charges to a later date. App. 19, 22. Petitioner returned to court on November 6, 2009, before Judge Alford to be sentenced on murder, armed robbery, kidnapping, and possession of a knife during the commission of a violent crime charges. App. 24. Following the presentation of mitigation evidence by Petitioner, and statements by Victim's family, Judge Alford sentenced Petitioner to life imprisonment. App. 26-65.
Citations to “App.” refer to the Appendix for Petitioner's plea transcript and Post-Conviction Relief (“PCR”) proceedings and the page numbers on the bottom of the page. That appendix is available at ECF No. 32-1 in this habeas matter.
Petitioner appealed her guilty pleas and sentences to the South Carolina Court of Appeals (“Court of Appeals”). App. 68-76. On appeal, Petitioner was represented by Appellate Defender Robert M. Pachak, Esq., of the South Carolina Office of Appellate Defense, who filed a Final Anders Brief of Appellant on or about August 17, 2010, raising the following issue:
Anders v. California, 386 U.S. 738, 744 (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.
Whether Appellant's guilty plea complied with the mandates set forth in Boykin v. Alabama? App. 71. Attorney Pachak certified the appeal was without legal merit and asked to be relieved as counsel. App. 75. On June 17, 2011, the Court of Appeals filed an unpublished decision dismissing Petitioner's appeal. App. 78.
Petitioner filed a PCR application on May 22, 2012, in which she alleged ineffective assistance of counsel, breach of bargain, and prosecutorial misconduct. App.79-86. The State filed a Return on or about September 26, 2012. App. 87-91. At PCR, Petitioner was represented by Elizabeth Patterson Wiygul, Esq. and Lawrence W. Crane, Esq., and the State was represented by J. Rutledge Johnson, Esq. App. 93-112. A PCR evidentiary hearing was held before the Honorable John C. Hayes, III, Circuit Court Judge, on April 15, 2013, at which Petitioner and her plea counsel Harry Dest testified. Id. On May 23, 2013, Judge Hayes issued an order dismissing Petitioner's PCR Application. App. 114-118.
Petitioner appealed the dismissal of her PCR application. ECF No. 32-4. Appellate Defender Carmen V. Ganjehsani, of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented Petitioner on appeal. ECF No. 32-5. Attorney Ganjehsani filed a Johnson petition for writ of certiorari in the South Carolina Supreme Court on December 27, 2013, 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).
Did the PCR court err in finding that plea counsel provided effective assistance of counsel where Petitioner asserts that she would have gone to trial if her plea counsel had not led her to believe that she would receive thirty years if she pled guilty to murder and where Petitioner did not understand that she could receive life without parole upon pleading guilty?Id. at 3. Attorney Ganjehsani asserted the petition was without legal merit to warrant a new trial and requested permission to withdraw from further representation. Id. at 11. The South Carolina Supreme Court denied the Petition for Writ of Certiorari on July 11, 2014. ECF No. 32-7. The Remittitur was issued on July 29, 2014. ECF No. 32-8. This Petition followed on February 16, 2022. ECF No. 1.
II. Discussion
A. Federal Habeas Issues
Petitioner states the following ground in her habeas petition:
GROUND ONE: Defendant is so emotionally damaged as to be unable to defend herself. Plea was involuntary, counsel ineffective
Supporting facts: amended USHC petition (separate cover) She was entrapped by husband, and by police. Lacks mens rea. Not mentally competent to make a plea. She was not properly (Mentally) evaluated by Trial Court, attributable to ineffective asst of counsel.ECF No. 1-5 at 5 (Errors in original).
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 her Petition after the effective date of the AEDPA, review of her 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, 618 (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). Further, the AEDPA provides that 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.28 U.S.C. § 2244(d)(1)(A)-(D). Under subsection (A), “the one-year limitation period begins running when direct review of the state conviction is completed or when the time for seeking direct review has expired, unless one of the circumstances enumerated [in subsections (B), (C), or (D)] is present and starts the clock running at a later date.” Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002).
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). In interpreting §§ 2244(d)(1) and (2), the Fourth Circuit has held the time that elapses between completion (or expiration) of direct review and commencement of state post-conviction review counts toward the one-year limitation period. See Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000) (“In short, [28 U.S.C. § 2244(d)] provides that upon conclusion of direct review of a judgment of conviction, the one-year period within which to file a federal habeas petition commences, but the running of the period is suspended for the period when state post-conviction proceedings are pending in any state court.”). “Moreover, the one-year limitation period is also subject to equitable tolling in those rare instances where-due to circumstances external to the party's own conduct-it would be unconscionable to enforce the limitation against the party.” Hill, 277 F.3d at 704.
2. Petitioner's Application Is Time-Barred
Respondent argues Petitioner's habeas petition should be dismissed because Petitioner's claims are barred by the statute of limitations. ECF No. 32 at 9-10. 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 [her] 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)).
Review of the record indicates Petitioner's federal habeas petition was not timely filed. As previously summarized, Petitioner appealed her conviction by filing a Final Anders Brief of Appellant that was dismissed by the Court of Appeals on June 17, 2011. App. 78. 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, her conviction became final on July 4, 2011, 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 15 days after the filing of the opinion, order, judgment, or decree of the court). Petitioner's filing of her PCR application on May 22, 2012, App. 79, tolled the one-year limitations period, see 28 U.S.C. § 2244(d)(2), at which time 323 days had elapsed, leaving 42 days within which Petitioner could timely file a federal habeas petition. The statute of limitations remained tolled until, at the very latest, August 7, 2014, upon the filing of the remittitur in Union County following the Court of Appeals denial of the petition for writ of certiorari. ECF No. 32-9. The statute of limitations expired on September 18, 2014; however, Petitioner did not file her habeas action until February 16, 2022, approximately seven years after the statute of limitations had run. 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, Smith v. Warden, Lieber Corr. Inst., No. 4:13-3090-BHH, 2014 WL 5503529, at *6 (D.S.C. Oct. 30, 2014) (appeal decided); Johnson v. Warden, Lee Corr. Inst., No. 2:14-cv-0768 DCN, 2015 WL 1021115, at *9 (D.S.C. Mar. 9, 2015) (remittitur issued); Beatty v. Rawski, No. 1:13-3045-MGL-SVH, 2015 WL 1518083, at *2-6 (D.S.C. Mar. 31, 2015) (remittitur filed).
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, 277 F.3d at 705; 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)).
In her Responses in Opposition to Respondent's Motion for Summary Judgment, ECF Nos. 37, 41, 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. Having found the statute of limitations bars Petitioner's § 2254 Petition, the undersigned is precluded from addressing the merits of her 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).
III. Conclusion and Recommendation
Based upon the foregoing, the undersigned recommends Respondent's Motion for Summary Judgment, ECF No. 33, be GRANTED and the Petition be DENIED.
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
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).