
    Willie Lee TUCKER, Petitioner, v. Colie L. RUSHTON, Respondent.
    C.A. No. 2:08-3478-PMD-RSC.
    United States District Court, D. South Carolina.
    July 10, 2009.
    
      Willie Tucker, McCormick, SC, pro se.
    Donald John Zelenka, William Edgar Salter, III, SC Attorney General’s Office, Columbia, SC, for Respondent.
   ORDER

PATRICK MICHAEL DUFFY, District Judge.

This matter is before this Court on Respondent Colie L. Rushton’s (“Respondent”) Motion for Summary Judgment on Petitioner Willie Lee Tucker’s (“Petitioner”) petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Petitioner is proceeding pro se and in forma pauperis. This matter was referred to United States Magistrate Judge Robert S. Carr, who has written a Report and Recommendation (“R & R”) recommending that Respondent’s Motion be granted. This Court has reviewed the entire record, including the R & R and the Petitioner’s Objections to the R & R, and finds that the Magistrate Judge fairly and accurately assessed the situation. Fore the reasons set forth herein, this Court adopts the Magistrate Judge’s R & R and grants Respondent’s Motion for Summary Judgment.

PROCEDURAL HISTORY

Petitioner is an inmate at McCormick Correctional Institute (“MCI”), as a result of his conviction and sentence in Richland County for possession with the intent to distribute crack cocaine. This was Petitioner’s third offense. He was represented on this charge by Ms. Amye Leigh Rushing, Esq.

Petitioner pled guilty to possession with intent to distribute crack cocaine. In exchange for that plea, the State agreed to drop a separate charge for possession of marijuana as well as an old charge for trafficking crack cocaine in 2002. The State also agreed not to seek a sentence of life without parole. Petitioner was sentenced to 20 years in prison and a $100,000 fine. Petitioner did not appeal his conviction or sentence.

Later, on June 22, 2004, Petitioner filed a Post-Conviction Relief (PCR) Application (04-CP40-3004). The following grounds were alleged in his Application:

1. Ineffective assistance of counsel because counsel failed to provide useful pre-trial preparation and investigation; and counsel did not advise Petitioner of his right to appeal; and
2. Involuntary guilty plea due to ineffective assistance of counsel.

App. at 27-35. The state filed its Return on March 25, 2005.

An evidentiary hearing was held into the matter on April 5, 2006 in Richland County. Petitioner was represented by Katherine Hudgins, Esq., in this matter. Petitioner testified on his own behalf and he presented the testimony of his plea counsel, Ms. Rushing.

On May 2, 2006 the PCR judge filed an Order of Dismissal with prejudice, denying relief to Petitioner. The court addressed the issues of ineffective counsel, and the guilty plea which Petitioner claims was invalid based on ineffective counsel. The court also found that the State had agreed only to dismiss specific charges, addressing Petitioner’s belief that the State had not kept its end of the plea bargain.

Petitioner timely served and filed his notice of appeal. Wanda Carter, Esq. represented him in the collateral appellate proceedings. On February 26, 2007, Petitioner filed his petition for Writ of Certiorari. The only issue presented to the South Carolina Court of Appeals was:

Trial counsel erred in failing to move for the withdrawal of petitioner’s plea or in the alternative] to have the plea vacated because the state did not perform its part of the negotiated plea bargain in the case.

The Court of Appeals denied certiorari May 20, 2008. Petitioner now files his petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. The following allegations are raised in his petition for the Writ:

GROUND ONE: Ineffective assistance of trial counsel.
SUPPORTING FACTS: Trial counsel erred in failing to move for the withdrawal of defendant’s plea, or in the alternative to have the plea vacated because the State did not perform its part of the negotiated plea bargain in the case.
GROUND TWO: Denial of equal protection.
SUPPORTING FACTS: Petitioner was denied equal protection and due process of law when State government breached the plea agreement and the evidence is supported by the records of the lower court and the State supreme Court.
GROUND THREE: Denial of fundamental fairness and due process of law.
SUPPORTING FACTS: Petitioner was denied fundamental fairness and due process of law where Petitioner was denied effective assistance of trial, appellate and post-conviction counsel.

Respondent filed a Motion for Summary Judgment. Petitioner filed a Response in Opposition to Respondent’s Motion. The Magistrate Judge submitted his R & R to this Court and has recommended that Respondent’s Motion for Summary Judgment on the issue of timeliness be granted. Petitioner has made three specific objections to the R & R, which this Court will address individually.

STANDARD OF REVIEW

The Magistrate Judge made his review in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. The Magistrate Judge only makes a recommendation to the court. It has no presumptive weight, and the responsibility for making a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). Parties are allowed to make a written objection to a Magistrate Judge’s report within ten days after being served a copy of the report. 28 U.S.C. § 636(b)(1). From the objections, the court reviews de novo those portions of the R & R that have been specifically objected to, and the court is allowed to accept, reject, or modify the R & R in whole or in part. Id. Additionally, the court may recommit the matter to the Magistrate Judge with instructions. Id. 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), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980). The requirement of liberal construction, however, does not mean that the court can ignore a clear failure in pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir.1990).

DISCUSSION

I. DOES THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996 (“AEDPA”) VIOLATE THE DUE PROCESS CLAUSE?

The Magistrate Judge recommended that Respondent’s Motion be granted because Petitioner’s motion was filed after the applicable statute of limitations expired. Petitioner claims that the AEDPA time limitation provision is unconstitutional because it “serves as a bar to deny access to the federal courts.” (Obj. at 1.) Petitioner is, in essence, claiming a violation of the Suspension Clause of the Constitution, which states that Congress may pass no law suspending the writ of habeas corpus. Under Petitioner’s theory, AEDPA strips the federal courts of some component of the judicial power vested in them by Article III. AEDPA, however, serves no such purpose. The court in Mueller v. Angelone, 181 F.3d 557 (4th Cir.1999), held that AEDPA’s provisions do not violate the Suspension Clause. “The amendment did not work an unconstitutional limitation upon the jurisdiction of federal habeas courts, but rather represented a modest congressional alteration of the standards pursuant to which the writ issues.” Id. The court in Green v. French, 143 F.3d 865 (4th Cir.1998), agreed that § 2254(d) did not unconstitutionally restrict the scope of federal habeas review, but rather “only plaee[d] an additional restriction upon the scope of the federal habeas review in certain circumstances.”

Petitioner’s claim that the AEDPA is unconstitutional because it deprives habeas petitioners of due process is incorrect. Petitioner still has had every right to bring a claim for habeas relief in this Court under § 2254, AEDPA simply requires Petitioner to first exhaust his state court direct appeal and PCR remedies before bringing the claim, and requires any claim to be brought with the prescribed time period. Petitioner has had his fair share of due process, but has simply failed to file his petition for habeas relief in a timely fashion.

II. IS AEDPA “VOID FOR VAGUENESS”?

Petitioner next claims that applying AEDPA in this case would be unconstitutional because the statute is “void for vagueness.” The Supreme Court of the United States and the United States Court of Appeals for the Fourth Circuit have addressed vagueness as a rationale for invalidating penal statutes, but neither have addressed it with respect to the writ of habeas corpus. This is because habeas corpus is a procedural mechanism which litigants use at their discretion, as opposed to a penal statute which enforces conduct.

Furthermore, Petitioner even acknowledges that the relevant part of federal habeas statutes “covers over 1400 pages of highly termical [sic] and often confusing legal precepts.” (Obj. to R & R 2.) Petitioner cites several legal terms or phrases which he claims are “almost indecipherable and serve to confuse those untrained in this highly specific areas of law.” Id. It seems that, if anything, Petitioner’s complaint is that federal habeas law is too specific and voluminous. However, this provides no grounds for striking down such laws as unconstitutional, and federal statutes have never been required to be written in such a way so as to be easily understandable to the layperson. Petitioner’s argument that the writ is void for vagueness is therefore based upon a misunderstanding of the “void for vagueness” standard. Accordingly, AEDPA is not “void for vagueness,” and this Court will not find that Petitioner’s claim for relief was timely based upon this reasoning.

III. DID THE MAGISTRATE JUDGE BASE HIS R & R ON THE WRONG SUBSECTION OF § 2244?

The Court finally addresses Petitioner’s contention that the Magistrate Judge misapplied the pertinent sections of the law and improperly calculated the statute of limitations. Petitioner claims that the Magistrate Judge should have used § 2244(d) in determining whether or not Petitioner’s claim for habeas relief was filed after the applicable statute of limitations had expired. However, the Magistrate Judge did in fact use the section which Petitioner claims he should have used. 28 U.S.C. § 2244(d)(1)(A) tells us that AEDPA provides a 1-year period of limitation which shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court. This limitations period begins to run on “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). The limitations period is tolled during the pendency of a properly filed collateral attack on the subject conviction. 28 U.S.C. § 2254(d)(2).

Petitioner’s conviction became final on October 2, 2003, at which point he had one year to file his habeas petition in this court. Petitioner filed a PCR application 262 days after his conviction was finalized. 04-CP-40-3004. This tolled the statute of limitations, leaving the Petitioner 103 days to file his petition. However, once the PCR proceedings were concluded, the statute of limitations began to run again. Petitioner filed his claim for relief in this Court 124 days after the conclusion of his PCR proceedings, or 21 days late. Under AEDPA, the petition is therefore untimely and must be dismissed.

CONCLUSION

It is therefore ORDERED, for the foregoing reasons, that Respondent’s Motion for Summary Judgment is GRANTED, and Petitioner Tucker’s Petition for relief under 28 U.S.C. § 2254 is DISMISSED.

AND IT IS SO ORDERED.

REPORT AND RECOMMENDATION

ROBERT S. CARR, United States Magistrate Judge.

This habeas corpus petition under 28 U.S.C. § 2254 brought by a state prisoner proceeding pro se and in forma pauperis is before the undersigned United States Magistrate Judge for a report and recommendation on the respondents’ summary judgment motion. 28 U.S.C. § 636(b).

PROCEDURAL HISTORY

The petitioner, Willie Lee Tucker, is presently confined in the McCormick Correctional Institution of the South Carolina Department of Corrections (SCDC), as the result of his Richland County conviction and sentence for possession with intent to distribute crack cocaine, third offense. The Richland County Grand Jury indicted Petitioner at the April 2003 term of court for trafficking in crack cocaine, 10-28 grams, third offense (03-GS-40-1648). App. pp. 86-87. Amye Leigh Rushing, Esquire, represented him on the charges.

On September 22, 2003, he pled guilty before the Honorable J. Ernest Kinard, Jr. to possession with intent to distribute (PWID) crack cocaine, less than 10 grams, third offense. In exchange for his guilty plea to the incident occurring on February 26, 2003, the State agreed to nolle prosse a possession of marijuana charge as well as indictments for trafficking in crack cocaine and trafficking in powder cocaine from a June 2002 incident (02-GS-40-5336 & 5337) and a trafficking in powder cocaine indictment from the 2003 incident. (03-GS-40-1649). The State also agreed not to seek a sentence of life without parole. The State further agreed to nolle prosse indictments for trafficking in crack cocaine and trafficking in powder cocaine against his co-defendant, the mother of his children, stemming from the February 25, 2003, crimes. App. pp. 3-5; 19-20; 23. Judge Kinard sentenced the petitioner to twenty (20) years imprisonment and a $100,000.00 fine. App. pp. 1-25. Petitioner did not appeal his conviction or sentence.

Petitioner filed a pro se Post-Conviction Relief (PCR) Application (Q4-CP-40-3004) on June 22, 2004. He alleged the following grounds for relief in his Application:

1. Ineffective assistance of counsel because counsel filed to provide useful pretrial preparation and investigation; and counsel did not advise Petitioner of his right to appeal; and
2. Involuntary guilty plea due to ineffective assistance of counsel.

App. pp. 27-35. The State filed its Return on March 25, 2005. App. pp. 36-41.

The Honorable L. Casey Manning held an evidentiary hearing into the matter on April 5, 2006, at the Richland County Courthouse. Petitioner was present at the hearing represented by Katherine H. Hudgins, Esquire. Assistant Attorney General Robert L. Brown represented the State. Petitioner testified on his own behalf, and he presented the testimony of plea counsel, Rushing. The State presented the prosecutor, Assistant Fifth Circuit Solicitor Theodore N. Lupton. App. pp. 42-77.

On May 2, 2006, Judge Manning filed an Order of Dismissal, in which he denied relief and dismissed the Application with prejudice. The Order of Dismissal addressed Petitioner’s claims that trial counsel was ineffective because she rendered erroneous advice concerning the dismissal of charges against Petitioner’s co-defendant, Jacqueline Reese, and that his reliance on this erroneous advice rendered his guilty plea involuntary. The court also found the Assistant Solicitor had agreed to dismiss only specific charges stemming from the incident at a hotel room which had occurred in 2002. App. pp. 79-86.

Petitioner timely served and filed a notice of appeal. Deputy Chief Attorney Wanda H. Carter, of the South Carolina Commission on Indigent Defense’s Division of Appellate Defense, represented him in collateral appellate proceedings. On February 26, 2007, Petitioner filed a Petition for Writ of Certiorari. The only Question Presented in the Petition for Writ of Certiorari was stated as follows:

Trial counsel erred in failing to move for the withdrawal of petitioner’s plea or in the alternative] to have the plea vacated because the state did not perform its part of the negotiated plea bargain in the case?

Petition for Writ of Certiorari at p. 2. The State filed a Return to Petition for Writ of Certiorari on June 27, 2007.

The South Carolina Court of Appeals filed an Order on May 20, 2008, in which it denied certiorari. It sent the Remittitur to the Richland County Clerk of Court on June 5, 2008.

The following exhibits have been made part of the file here:

1. Appendix, the Honorable L. Casey Manning, Circuit Court Judge;
2. Petition for Writ of Certiorari dated February 26, 2007;
3. Return to Petition for Writ of Certiorari dated June 27, 2007;
4. South Carolina Court of Appeals Order denying certiorari dated May 20, 2008;
5. Remittitur dated June 5, 2008;
6. Additional Records from Richland County Clerk of Court Records (i.e. indictments, sentencing sheets, etc.).

HABEAS ALLEGATIONS

Petitioner raises the following allegations in his Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254:

GROUND ONE: Ineffective assistance of trial counsel.
SUPPORTING FACTS: Trial counsel erred in failing to move for the withdrawal of defendant’s plea, or in the alternate (sic) to have the plea vacated because the State did not perform its part of the negotiated plea bargain in the case.
GROUND TWO: Denial of equal protection.
SUPPORTING FACTS: Petitioner was denied equal protection and due process of law when State government breached the plea agreement and the evidence is supported by the records of the lower court and the State Supreme Court.
GROUND THREE: Denial of fundamental fairness and due process of law.
SUPPORTING FACTS: Petitioner was denied fundamental fairness and due process of law where petitioner was denied effective assistance of trial, appellate and post-conviction counsel.

The petitioner was provided a copy of the respondents’ summary judgment motion on February 4, 2009, and was given an explanation of dismissal and summary judgment procedure as well as pertinent extracts from Rules 12 and 56 of the Federal Rules of Civil Procedure similar to that required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975). The petitioner responded to the motion on March 2, 2009. Hence it appears consideration of the summary judgment motion is appropriate.

APPLICABLE LAW

STATUTE OF LIMITATIONS

Giving the petitioner the benefit of the holding in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the present habeas corpus petition was filed on October 8, 2008, the date stamp from the prison mail room. Accordingly, the provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) apply to this case. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The AEDPA provides that “[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.” 28 U.S.C. § 2244(d)(1). The limitations period begins to run “the date on which the judgement 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). The limitations period is tolled during the pendency of a properly filed collateral attack on the subject conviction. 28 U.S.C. § 2254(d)(2).

DISCUSSION

A review of the record and relevant case law reveals that the petitioner is not entitled to relief. The respondents argued that the petition must be dismissed as untimely, and it appears that the respondents are correct.

Petitioner’s conviction was finalized ten (10) days after September 22, 2003, the last date on which he could serve a notice of appeal to the South Carolina Supreme Court from his guilty plea. See Rule 203(b)(2), SCACR. Thus, his conviction became final on October 2, 2003, and he thereafter had one year within which to file a habeas corpus petition in this court. 28 U.S.C. § 2244(d)(1)(A)

Two hundred and sixty two (262) days after his conviction became final, on June 22, 2004, Petitioner filed a PCR application, 04-CP-40-3004. This tolled the running of the one years statute of limitations until the proceedings in 04-CP-40-3004 concluded when the state court of appeals sent the Remittitur to the Rich-land County Clerk of Court on June 5, 2008. Thereafter he had one hundred three (103) days left to file his habeas petition. He did not do so. Instead he filed here on October 8, 2008, one hundred twenty four (124) days after the Remittitur to the Richland County Clerk of Court on June 5, 2008. Three hundred eighty six (386) days (262 plus 124) elapsed after his conviction became final. Therefore, his petition is untimely under the AEDPA. 28 U.S.C. § 2244(d)(1).

CONCLUSION

Accordingly, for the aforementioned reason it is recommended that the respondents’ motion for summary judgment on timeliness grounds be granted and this matter ended. 
      
      . In Gary v. State, 347 S.C. 627, 557 S.E.2d 662 (2001) the South Carolina Supreme Court held that an inmate's mailing of a PCR application does not constitute "filing”, for statute of limitations purposes. Rather, application is filed when received by the Clerk of Court. See, also, Fox v. Union-Buffalo Mills, 226 S.C. 561, 86 S.E.2d 253 (1955); Sternberger v. McSween, 14 S.C. 35 (1880).
     