Opinion
C/A No.: 1:19-1317-CMC-SVH
06-19-2019
Taurus S. Watts, Petitioner, v. Warden Michael Stephon, Respondent.
REPORT AND RECOMMENDATION
Taurus S. Watts ("Petitioner"), proceeding pro se, filed this action requesting habeas corpus relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends the district judge dismiss the petition without issuance and service of process. I. Petitioner's Failure to Prosecute
On May 22, 2019, the court ordered Petitioner to advise the court of any exceptional reason for the six-year lapse in time between the denial of his state post-trial motion and the filing of his federal habeas petition. [ECF No. 8]. The court warned Petitioner that failure to comply with the court's order by June 12, 2019, may subject his case to dismissal. Id. Petitioner did not file a response.
It is well established that a district court has authority to dismiss a case for failure to prosecute. "The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an 'inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Fed. R. Civ. P. 41(b). Id. at 630. Based on Petitioner's failure to respond to the court's May 22, 2019 order, the undersigned concludes Petitioner does not intend to pursue this case. II. Timeliness of Petition for Habeas Relief
In addition, Petitioner's habeas petition is untimely under 28 U.S.C. § 2244(d). Section 2244(d) provides a petition for writ of habeas corpus must be filed within one year of the date on which the conviction being challenged becomes final. The one-year period does not run ("is tolled") while a direct appeal and a post-conviction relief application are pending.
However, § 2244(d)'s one-year statute of limitations is subject to equitable tolling, which could extend the final date for filing. Lindh v. Murphy, 521 U.S. 320 (1997); Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000). "[A] 'petitioner' is 'entitled to equitable tolling' only if he 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 v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner has provided no reason to justify the application of equitable tolling.
Petitioner seeks to vacate an October 15, 2009 murder conviction. [ECF No. 1 at 1]. He appealed his conviction and sentence. Id. at 2. The South Carolina Court of Appeals denied Petitioner's appeal on June 20, 2012. See State v. Watts, Op. No. 2012-UP-381 (S.C. Ct. App. June 20, 2012). Petitioner does not allege he filed additional appeals or sought post-conviction relief.
This court may take judicial notice of Petitioner's prior case. 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).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides a one-year limitations period, to run at the "conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Because Petitioner did not seek review by the United States Supreme Court, the AEDPA's one-year statute of limitations began running "at the expiration of the time" for seeking direct review in state court. 28 U.S.C. § 2244(d)(1)(A). Petitioner's judgment of conviction therefore became final "when his time for seeking review with the State's highest court expired." Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (clarifying the Court's prior cases concerning 28 U.S.C. § 2244(d)(1)(A)).
The Court's Gonzalez decision makes it clear that, for a petitioner who did not seek review by filing a petition for writ of certiorari in that Court, no time is added to the expiration of the "time for seeking review with the State's highest court." 534 U.S. at 150. The Court contrasted its finding as to § 2244's statute of limitations with its cases interpreting the statute of limitations found in 28 U.S.C. § 2255(f)(1), which is applicable to federal prisoners seeking habeas relief. Id. at 149 (noting federal judgment of conviction begins "'when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari,' or, if a petitioner does not seek certiorari, 'when the time for filing the certiorari petition expires.'") (quoting Clay v. United States, 537 U.S. 522, 527 (2003)).
Petitioner's conviction became final on July 6, 2012, upon his failure to file a petition for rehearing. See Rule 221(a), SCACR ("Petitions for rehearing must be actually received by the appellate court no later than fifteen (15) days after the filing of the opinion, order, judgment, or decree of the court."); 28 U.S.C. § 2244(d)(1)(A); Gonzalez, 565 U.S. at 151-54 (rejecting the use of remittitur dates in applying Section (d)(1)(A))). His federal time began to run the following day, July 7, 2012. Petitioner had until July 7, 2013, to file his federal habeas petition, but waited until May 2, 2019—almost six years too late. Because Petitioner filed outside the one-year statute of limitations, this action is untimely under 28 U.S.C. § 2244(d). Accordingly, the undersigned recommends the district judge dismiss this case without issuance and service of process.
The court received and docketed the petition on May 6, 2019. [ECF No. 1-1 at 1]. However, because Petitioner is incarcerated, he benefits from the "prison mailbox rule." Houston v. Lack, 487 U.S. 266 (1988). The prison mailroom received the petition on May 2, 2019. [ECF No. 1-1 at 1].
IT IS SO RECOMMENDED. June 19, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
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).