Opinion
C/A 4:23-2469-BHH-TER
08-15-2023
Don Survi Chisolm, #347831, a/k/a Don-Survi Chisolm, Petitioner, v. Tonya James, Warden, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
Petitioner, a state prisoner, proceeding pro se and in forma pauperis, 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)(c) DSC. Having reviewed the petition in accordance with applicable law, the Court concludes that it should be summarily dismissed.
See generally, https://publicindex.sccourts.org/berkeley/publicindex/(with search parameters limited by Petitioner's name). The court may take judicial notice of factual information located in postings on government websites. See In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records); Williams v. Long, No. 07-3459-PWG, 2008 WL 4848362 at *7 (D. Md. Nov. 7, 2008) (noting that some courts have found postings on government websites as inherently authentic or self-authenticating).
In Berkeley County, on October 16, 2012, Petitioner pleaded guilty to murder, assault and battery with intent to kill, and possession of weapon charges in exchange for the death penalty not being pursued. (ECF No. 4 at 3). Petitioner filed a timely direct appeal and the remittitur was received in the lower court on March 28, 2013. Petitioner filed a PCR on February 18, 2013. Petitioner appealed the PCR denial and the remittitur was received in the lower court on August 14, 2017. Petitioner filed a second PCR in 2022 that does not toll the running of AEDPA statute of limitations here. Liberally construed, the Lack date of Petition is June 2, 2023. There are over 1,500 days of untolled time.
Since the petition in this case is woefully untimely, in an order (ECF No. 7) dated July 13, 2023, the undersigned directed the Petitioner as follows:
Upon initial review of the Petition, it appears from the face of the Petition that this case may be untimely filed. This order is notice to Petitioner that the court is considering dismissal of his case based on the running of the one-year statute of limitations. Unless the petitioner provides facts casting doubt on the issue of untimeliness of his Petition and thereby prevent dismissal based on the limitations bar, this case may be subject to dismissal. Accordingly, Petitioner is granted twenty-one (21) days to file a factual explanation with this court to show cause why his Petition should not be dismissed based on the application of the one-year limitation period established by 28 U.S.C. § 2244(d), including but not limited to, factual dispute regarding the relevant dates of filings in state court mentioned and/or facts supporting the application of equitable tolling. See Rouse v. Lee , 339 F.3d 238, 246 (4th Cir. 2003).(ECF No. 7)(emphasis in original). Additionally, the order cited law regarding the functioning of the habeas one-year statute of limitations. Petitioner was not responsive to the Court's order to show cause why the Petition should not be dismissed based on the application of the one-year statute of limitation.
DISCUSSION
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings and motion to proceed in forma pauperis pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).
With respect to his convictions and sentences, the petitioner's sole federal remedies are a writ of habeas corpus under either 28 U.S.C. § 2254 or 28 U.S.C. § 2241, which remedies can be sought only after the petitioner has exhausted his state court remedies. “It is the rule in this country that assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Claims not so raised are considered defaulted.” Beard v. Green, 523 U.S. 371, 375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)); see also 28 U.S.C. § 2254(b); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973); Picard v. Connor, 404 U.S. 270 (1971). The petition in the above-captioned case is untimely.
The AEDPA, 28 U.S.C. 2244(d) provides:
(d)(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 post- conviction 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).
The Petition and public court records show the following periods of untolled time:
-March 28, 2013(the date the remittitur was received in the lower court on the direct appeal) to February 18, 2013. (the filing date of Petitioner's state PCR action) (0 days, no time ran)
-August 14, 2017 (the date the remittitur was received on Petitioner's appeal of the denial of his PCR action) to June 2, 2023(the Houston v. Lack delivery date of the instant Petition) (over 2,100 days)
Accordingly, the Petitioner has several years of untolled time. This aggregate time period exceeds the one-year statute of limitations of 28 U.S.C. § 2244(d). See Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000). Therefore, the present petition is time-barred and should be dismissed on that basis.
The habeas statute of limitations is subject to equitable tolling if 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 v. Florida, 560 U.S. 631, 649 (2010)(internal citation and quotation omitted). Petitioner has presented several “merit”-type arguments but has not presented any equitable tolling argument as to diligent pursuit and/or extraordinary circumstances in regard to the statute of limitations. In response to question no. 18 of the Petition regarding timeliness, Petitioner states he first became aware of evidence and Brady violations beginning in November 2021. Even if it were appropriate to run time from then to the Lack date, more than 365 days has run.
In response to the Court's order to show cause, Petitioner has pleaded no facts regarding equitable tolling of the limitations found in 28 U.S.C. 2244(d). Liberally construed, to the extent Petitioner believes the filing of a successive, untimely PCR in the state court acts to toll the AEDPA statute of limitations, five years of untolled time had passed between the first PCR final decision and the filing of the second PCR. Moreover, only a PCR which has been “properly filed” can toll time. Petitioner's second PCR has been conditionally dismissed because it was untimely and successive, and thus was not “properly filed.” See Pettinato v. Eagleton 466 F.Supp.2d 641, 649 (D.S.C. 2006)(internal citation omitted)(if a state court has rejected a PCR as untimely under state law then the PCR was not ‘properly filed'). There is no evidence that warrants equitable tolling. Petitioner has not demonstrated that he pursued his rights diligently or that some extraordinary circumstances stood in his way to prevent him from timely filing his federal habeas petition. Petitioner is untimely by years. Therefore, the Petition should be dismissed as barred by the statute of limitations. Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002); see also Day v. McDonough, 547 U.S. 198 (2006).
The Petitioner's right to file objections to this Report and Recommendation and Petitioner's prior opportunity to respond to this court's order constitute opportunities to object to a dismissal of this Petition based on the statute of limitations. Hill v. Braxton, 277 F.3d at 707 (habeas case; timeliness may be raised sua sponte if evident from face of pleading, but petitioner must be given warning and opportunity to explain before dismissal). Cf. Bilal v. North Carolina, 287 Fed.Appx. 241, 2008 WL 2787702 (4th Cir. July 18, 2008).
RECOMMENDATION
Accordingly, it is recommended that the § 2254 petition be dismissed with prejudice and without requiring the respondent to file a return because the petition is untimely under the one-year limitations provision of the AEDPA, 28 U.S.C. § 2244(d).
Petitioner's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The petitioner is advised that he may file specific written objections to this Report and Recommendation with the District Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In the absence of a timely filed objection, a district court judge 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 & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005).
Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed.R.Civ.P. 6(a) & (e). Filing by mail pursuant to Fed.R.Civ.P. 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 the waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); and Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).