REPORT AND RECOMMENDATION

THOMAS E. ROGERS, III, Senior Magistrate Judge.

Petitioner, Pervis White ("Petitioner/White"), is an inmate in the custody of the South Carolina Department of Corrections (SCDC). Petitioner, appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 22541 on July 24, 2017. Respondent filed a motion for summary judgment on December 8, 2017, along with a return and supporting memorandum. Because Petitioner is proceeding pro se, he was advised on or about December 12, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), that a failure to respond to the Respondent's motion for summary judgment could result in the dismissal of his petition. Petitioner failed to file a response.

RULE 41(B) DISMISSAL

A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990), and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:

Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).

In the present case, the Petitioner is proceeding pro se so he is entirely responsible for his actions. It is solely through Petitioner's neglect, and not that of an attorney, that no responses have been filed. Petitioner has not responded to Respondent's motion for summary judgment or the court's orders requiring him to respond. No other reasonable sanctions are available. Accordingly, it is recommended that this action be dismissed pursuant to Fed. R. Civ. Proc. 41(b).

In the alternative, it is recommended that Respondent's motion for summary judgment be granted and this action be dismissed as barred by the statute of limitations. However, the procedural history is set forth for reference purposes.

PROCEDURAL HISTORY

The procedural history as set forth by the Respondent in his memorandum has not been disputed by Petitioner. Therefore, the undersigned will set out the undisputed procedural history as set forth by the Respondent, in part.

Petitioner is currently confined at the Lee Correctional Institution in the South Carolina Department of Corrections pursuant to orders of commitment from the Clerk of Court for Dillon County. Petitioner was indicted by the Dillon County Grand Jury for murder (95-GS-17-0730), armed robbery (95-GS-17-0729), and criminal conspiracy (95-GS-17-0731). Glenn B. Manning and John Jepertinger represented Petitioner on the charge. The State sought the death penalty and a jury was drawn for Petitioner's trial, but prior to the beginning of trial a plea agreement was reached. The plea agreement allowed Petitioner to make an Alford plea to the charges in exchange for the State agreeing to a life sentence for the charge of murder, thirty (30) years concurrent for the charge of armed robbery, and four (4) years consecutive for the charge of criminal conspiracy. The agreement was memorialized in writing and signed by Petitioner. On February 12, 1998, the Honorable Marc B. Westbrook was informed of the plea agreement and proceeded straight into a guilty plea hearing. Judge Westbrook heard the plea, qualified it as voluntarily and intelligently given, and accepted the Alford plea after hearing the factual summary provided by the State. (Attachment 1. PCR App. pp. 2, line 9 through pp. 27, line 3; Attachment 2, pp 3-6). Petitioner did not seek a direct appeal of his plea or sentencing.

First PCR Action

On January 21, 1999, Petitioner filed an Application for Post-Conviction Relief in the Court of Common Pleas for Dillon County. The State made its return to the petition on April 21, 1999. Petitioner was assigned counsel, Wade R. Crow. The PCR hearing was held before the Honorable Daniel F. Pieper who summarized the allegations of error as follows:

(Attachment 1. PCR App. pp. 88).

An evidentiary hearing was held on February 2, 2000. After communications with Mr. Crow at the hearing, Judge Pieper subsequently identified Applicant's allegations to include:

(Attachment 1. PCR App. pp. 87-100). Petitioner then filed a Notice of Appeal on April 25, 2000, and submitted a Petition for Writ of Cert contesting the PCR Court's decision. (Attachment 3). The Petition for Writ of Certiorari was denied by letter dated October 25, 2001. (Attachment 4). Remittitur was issued on November 28, 2001. (Attachment 5). Petitioner sought rehearing which was also denied by letter dated November 28, 2001. (Attachment 6). Petitioner did not seek federal habeas relief following the denial of his PCR Appeal

Second PCR Action

On January 23, 2002, Petitioner filed a second PCR Application (2002-CP-17-028), raising allegations of ineffective assistance of PCR counsel, subject matter jurisdiction, ineffective assistance of trial counsel for failure to contest jursidiction, and a challenge involving jail time credit. (Attachment 7, pp. 6-7). The State filed a Return and Motion to Dismiss on May 2, 2002, requesting the application be summarily dismissed primarily on the basis of statute of limitations and the presumption against successive PCR applications, but also for lack of substantive merit. (Attachment 8). A hearing was held on May 21, 2002, and by Order of Dismissal dated December 27, 2002, the court found that the Application was impermissibly successive and beyond the statute of limitations. (Attachment 9). Petitioner did not file a Notice of Appeal or Petition for Writ of Certiorari of this ruling. Petitioner also did not seek federal habeas relief following the denial of this Application.

Third PCR Action

On December 4, 2008, Petitioner filed a third PCR application alleging afterdiscovered evidence, conflict of interest, and Brady/Rule 5 violations. The PCR Court filed a Conditional Order of Dismissal on March 19, 2009, finding that the Application was impermissibly successive and beyond the statute of limitations. (Attachment 11). The PCR Court instructed Petitioner to respond within twenty (20) days of service as to why the Conditional Order of Dismissal should not become final. (Attachment 11, pp. 5). Petitioner submitted a document entitled "Objections to Conditional Order re: White v. State #2008-CP-17-0400" asserting that he recently discovered the second chair defense attorney in his case was not qualified to try a death penalty case, and asserts this attorney had a de facto conflict of interest in the case as a result. (Attachment 12).

Judge Burch, in issuing the Final Order, found that Petitioner failed to set forth a sufficient basis for why the Conditional Order should not have been made final. (Attachment 13). Judge Burch also found no merit to the claim of newly-discovered evidence. The Final Order of Dismissal was filed July 23, 2009. (Attachment 13). Petitioner filed a pro se appeal and the Supreme Court requested a Rule 243(C) explanation for why the PCR Court Order should not be upheld. Petitioner provided an explanation. (Attachment 24). The Supreme Court then issued an Order of Dismissal on September 30, 2009, finding that Petitioner's Rule 243c explanation failed to show sufficient basis that the lower court's determination was improper. (Attachment 25). The Remittitur was issued October 19, 2009. (Attachment 26).

Fourth PCR

Petitioner filed a fourth PCR Application, dated September 25, 2014. (Attachment 14). In this Application, Petitioner asserted "6th Amendment, 14th Amendment, and S.C. Code of Law Ann 17-27-45(C)". In the argument, he asserts that counsel failed to investigate and request a psychiatric examination to determine Petitioner's incompetence. (Attachment 14). Serving as the PCR Court, Judge Burch issued a Conditional Order of Dismissal, filed November 18, 2 015, which found the Application to be impermissibly successive and well beyond the statute of limitations. (Attachment 15). Similarly, the Court ruled that Petitioner's action was barred by the doctrine of laches, finding that a delay of sixteen years since pleading guilty was too long of an unexplainable delay, which prejudices the State's ability to litigate the action. (Attachment 15).

Petitioner was given 30 days to respond and provide a basis for why the Order should not be made final. Petitioner filed a response as instructed on December 11, 2015.(Attachment 15, pp. 7). Therein, Petitioner argued that the Conditional Order of Dismissal should not be made final until an evidentiary hearing is held so that the court can have an opportunity to hear allegations that counsel failed to investigate Petitioner's mental illness which prevented him from understanding the Alford Plea.(Attachment 16, pp. 3). Applicant argued that this same mental illness prevented Petitioner from asserting the claim until his fourth PCR application. (Attachment 16, pp. 3). While not asserted in his fourth PCR Application, Petitioner also argued in his submitted response that Judge Burch had a conflict of interest in this matter for having signed the Final Order dismissing Applicant's third PCR Application. (Attachment 16). However, the Court found no basis to allow the Application to proceed to hearing and filed a Final Order of Dismissal on March 16, 2017. (Attachment 17).

Following the dismissal of the fourth PCR Application, Petitioner filed a Pro Se Notice of Appeal to the South Carolina Supreme Court on April 14, 2017. (Attachment 18). Pursuant to Rule 243(c) of the SCACR, the Supreme Court responded with an April 24th, 2017 letter instructing Petitioner to provide written explanation as to why the PCR Court's ruling was improper. (Attachment 19). Petitioner filed an explanation pursuant to Rule 243(c). On May 25, 2017, the Supreme Court issued an Order dismissing the matter. (Attachment 21). This Order also instructed Petitioner to submit within twenty days why the Court should also not issue an Order prohibiting Petitioner from filing any further collateral actions in the circuit court, including PCR and habeas corpus actions. (Attachment 21). No such response was provided by Petitioner, and the Supreme Court issued a second Order barring further collateral relief filings in this matter. (Attachment 22). The August 10, 2017 Remittitur was sent to the Clerk of Court for Dillon County and dated August 14, 2017.(Attachment 23).This Petition for Writ of Habeas Corpus followed and was placed in the mail on July 21, 2017.

GROUNDS FOR RELIEF

In his pro se Petition for Writ of Habeas Corpus, Petitioner raises the following ground for relief, quoted verbatim in part:

(Petition).

SUMMARY JUDGMENT

The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed. R. Civ. P. 56(c).

The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).

To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through "depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any." Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.

STANDARD OF REVIEW

Since Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 117 S.Ct. 2059 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998); Green v. French, 143 F.3d 865 (4th Cir. 1998). That statute now reads:

To a large extent, the amendment of § 2254 shifts the focus of habeas review to the state court application of Supreme Court law. See O'Brien v. DuBois, 145 F.3d 16 (1st Cir. 1998) ("the AEDPA amendments to section 2254 exalt the role that a state court's decision plays in a habeas proceeding by specifically directing the habeas court to make the state court decision the cynosure of federal review."). Further, the facts determined by the state court to which this standard is applied are presumed to be correct unless rebutted by the Petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

The United States Supreme Court has addressed procedure under § 2254(d). See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000). In considering a state court's interpretation of federal law, this court must separately analyze the "contrary to" and "unreasonable application" phrases of § 2254(d)(1). Ultimately, a federal habeas court must determine whether "the state court's application of clearly established federal law was objectively unreasonable." Id. at 1521.

The AEDPA became effective on April 24, 1996. The AEDPA substantially modified procedures for consideration of habeas corpus petitions of state inmates in the federal courts.

DISCUSSION AS TO STATUTE OF LIMITATIONS

The Respondent asserts that the Petitioner's claims must be dismissed as untimely. Petitioner failed to file a response.

The applicable law is as follows: The AEDPA became effective on April 24, 1996. 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.2 Subsection (d) of the statute now reads:

As stated under the procedural history, Petitioner was convicted and sentenced on February 12, 1998. Petitioner did not file a direct appeal. He filed his first PCR application on January 21, 1999, which tolled the statute of limitations until his petition for certiorari was denied on November 28, 2001.3 Petitioner filed a second PCR application but it did not toll the statute of limitations because it was not a properly filed application for post-conviction relief, and it was dismissed as untimely and successive. The one year statute of limitations for filing a petition for writ of habeas corpus had expired before the filing of the second PCR application. Each of the subsequent PCR applications were dismissed as successive and beyond the statute of limitations so that they were not properly filed. Therefore, they did not toll the statute of limitations. This action was not filed until July 24, 2017, with a Houston v. Lack, 487 U.S. 266 (1988) date of July 21, 2017, which was well beyond the time limit for filing. Therefore, the instant petition is time-barred and should be dismissed.

In the case of Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000), the Fourth Circuit aggregated time periods to conclude that a federal habeas petition was time barred under 28 U.S.C. § 2244(d). In Harris, the Fourth Circuit stated:

Harris, 209 F.3d at 327.

The United States Supreme Court has held that the federal one year statute of limitations can be subject to equitable tolling in appropriate cases. Holland v. Florida,560 U.S. 631, 130 S.Ct. 2549, 2552-2554, 2560-2562 (2010); see also Rouse v. Lee, 314 F.3d 698, 704 (4th Cir.2003) (citing Harris v. Hutchinson, 209 F.3d 325, 330 (0 Cir.2000)). Circumstances will rarely warrant equitable tolling, however, and a Petitioner carries the burden of showing that he is entitled to equitable tolling. Harris, 209 F.3d at 330; see also Marengo v. Conway, 342 F.Supp.2d 222, 230 (S.D.N.Y.2004); Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002). Further, equitable tolling applies only in the rare and exceptional circumstance, and is limited to "extraordinary circumstances" preventing a prisoner from filing a timely petition. Warren v. Garvin, 219 F.3d 111, 113 (2d Cir.2000); Marengo, 342 F.Supp.2d at 230. "[T]he party seeking equitable tolling must [also] have acted with reasonable diligence throughout the period he seeks to toll." Marengo, 342 F.Supp.2d at 230 (quoting Warren, 219 F.3d at 113); see also Holland, 130 S.Ct. at 2562 ["`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."] (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)).

There is no competent 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. Therefore, it is recommended that the petition be dismissed as barred by the statute of limitations, and Respondent's motion for summary judgment should be granted.

CONCLUSION

As set out above, the Petitioner's federal habeas corpus petition should be dismissed for failure to prosecute pursuant to Fed. R. Civ. Proc. 41(b), with prejudice. Alternatively, it should be dismissed as barred by the statute of limitations. It is, therefore,

RECOMMENDED that Respondent's motion for summary judgment (document #24) be GRANTED in its ENTIRETY, and the petition be dismissed without an evidentiary hearing.

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:

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).