SHIVA V. HODGES, Magistrate Judge.
Petitioner Jason Jumper is an inmate at the Broad River Correctional Institution of the South Carolina Department of Corrections. He filed this pro se 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. 15, 16]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 17]. The matter has been fully briefed [ECF Nos. 21, 25] and is ready for disposition. After having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's motion for summary judgment be granted.
Petitioner was indicted by the Sumter County grand jury during the October 2011 term of court on twelve counts of conspiring to manufacture methamphetamine, seven counts of unlawful manufacture of methamphetamine in the presence of a minor child, three counts of manufacturing methamphetamine, three counts of possession of 200 to 400 grams of ephedrine/pseudoephedrine, and two counts of trafficking methamphetamine (2009-GS-43-0843). [ECF Nos. 15-1 at 95-96]. Petitioner was represented by John Britton, Esq., and on January 9, 2012, pled guilty to (1) one count of trafficking methamphetamine, 400 grams or more; (2) possession of ephedrine, 200 to 400 grams; (3) one count of manufacturing methamphetamine, first offense; and (4) one count of conspiracy to manufacture methamphetamine, first offense. Id. at 104-26. As part of the plea bargain, three other charges were dismissed. Id. at 105-06. Judge Young sentenced Petitioner to concurrent sentences of 15 years on the first-offense conspiracy and manufacturing charges, and 25 years for trafficking and possession of ephedrine. Id. at 124-25. Petitioner did not file a direct appeal of his convictions or sentences. [ECF No. 1 at 2].
On September 6, 2012, Petitioner filed a pro se application for post-conviction relief ("PCR") in which he alleged ineffective assistance of counsel and claimed his lawyer failed to file a direct appeal. Id. at 35-41. Micah Leddy, Esq., was appointed as counsel for Petitioner and filed a first amended PCR application on his behalf that raised the following claim and facts in support:
Id. at 43-44. On February 18, 2014, Attorney Leddy filed a second amended PCR application raised the following additional claim:
Id. at 54-55.
A PCR evidentiary hearing was held before the Honorable George C. James, Jr., on February 25, 2014, at which Petitioner and Attorney Leddy appeared. Id. at 127-234. Petitioner did not testify at the hearing. The court permitted post-hearing briefing on whether the trafficking statute's measurements of methamphetamine properly contemplates the entire weight of the waste water, as opposed to the smaller, marketable weight of the undiluted methamphetamine that could be extracted from the liquid. Id. at 59-77. On April 17, 2014, Judge James filed an order of dismissal. Id. at 13-29.
The court denied Petitioner's motion to reconsider on May 12, 2014. Id. at 81-87 (motion), 32 (order). Petitioner filed a notice of appeal from the denial of PCR. Id. at 88-89. Mr. Leddy continued his representation of Petitioner on appeal, and filed a petition for writ of certiorari on January 15, 2015, in the South Carolina Supreme Court, raising the following questions:
ECF No. 15-4.
On May 20, 2015, the South Carolina Supreme Court issued an order dismissing the appeal. [ECF No. 15-7]. The remittitur issued on June 5, 2015 [ECF No. 15-8] and was filed on June 8, 2015 [ECF No. 15-3].
On December 3, 2015, Petitioner filed this federal petition for a writ of habeas corpus. [ECF No. 1-1 at 1].
Petitioner states the following grounds in his habeas petition:
[ECF No. 1 at 5-10 (errors in original)].
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 nonmoving party and draw all justifiable inferences in its favor. Id. at 255.
Respondent moves for dismissal, alleging that the petition was not timely filed under the one-year statute of limitations created by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), made effective on April 24, 1996. Because Petitioner filed his petition after the effective date of the AEDPA, review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Noland v. French, 134 F.3d 208, 213 (4th Cir. 1998). 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 oneyear statute of limitations for filing habeas petitions. Subsection (d) of the statute provides:
28 U.S.C. § 2244(d) (emphasis added). Subsection (d)(1)(A) provides that the one-year statute of limitations begins to run on the date the petitioner's conviction becomes final, not after collateral review is completed. Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000). In South Carolina, a defendant must file a notice of appeal within ten days of his conviction. Rule 203(b)(2), SCACR. Thus if a defendant does not file a direct appeal, his conviction becomes final ten days after the adjudication of guilt. Crawley v. Catoe, 257 F.3d 395, 398 (4th Cir. 2001). If a defendant files a direct appeal and his conviction is affirmed, the conviction becomes final 90 days after the final ruling of the South Carolina Supreme Court. Harris, 209 F.3d at 328, n.1 (noting conviction becomes final on the expiration of the 90-day period to seek review by the United States Supreme Court from a state's highest court; cf. Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002) (discussing procedure for district court's sua sponte timeliness analysis, noting limitations period begins to run when time for filing certiorari in the United States Supreme Court has elapsed).
The statute of limitations is tolled during the period that "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). The statute of limitations is tolled for the entire period of the state post-conviction process, "from initial filing to final disposition by the highest state court (whether decision on the merits, denial of certiorari, or expiration of the period of time to seek further appellate review)." Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999). "Following the denial of relief in the state courts in state habeas proceedings, neither the time for filing a petition for certiorari in the United States Supreme Court, nor the time a petition for certiorari is considered by the United States Supreme Court, is tolled." Crawley v. Catoe, 257 F.3d at 399.
A state collateral proceeding must be "properly filed" for the statutory tolling provisions of 28 U.S.C. § 2244(d)(2) to apply. "[A]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Artuz v. Bennett, 531 U.S. 4, 8 (2000) (footnote omitted). "When a postconviction petition is untimely under state law, `that [is] the end of the matter' for purposes of § 2244(d)(2)." Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (quoting Carey v. Saffold, 536 U.S. 214, 226 (2002)). Generally, federal courts use Fed. R. Civ. P. 6(a) in computing periods of time under 28 U.S.C. § 2244(d)(2). Hernandez v. Caldwell, 225 F.3d 435, 439 (4th Cir. 2000).
In 2000, the Fourth Circuit held that the AEDPA's statute of limitations is not jurisdictional, but subject to the doctrine of equitable tolling. The court found that equitable tolling applies only in "those rare instances where—due to circumstances external to the [Petitioner's] own conduct—it would be unconscionable to enforce the limitation against the [Petitioner]." Harris, 209 F.3d at 330. In 2010, the United States Supreme Court squarely considered the issue and also held that § 2244 "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010); cf. Pace v. DiGuglielmo, 544 U.S. at 418 n.8 (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 equitable 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 649 (quoting Pace, 544 U.S. at 418)).
Under § 2244(d), the state bears the burden of asserting the statute of limitations. Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002). Petitioner then bears the burden of establishing that his petition is timely or that he is entitled to the benefit of the doctrine of equitable tolling. Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003).
The undersigned finds Petitioner did not timely file his petition in this matter. The AEDPA 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 oneyear 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, 132 S.Ct. 641, 653-54 (2012) (clarifying the Court's prior cases concerning 28 U.S.C. § 2244(d)(1)(A)).
Petitioner's conviction became final on January 19, 2012—ten days after he tendered his guilty plea on January 9, 2012. See SCACR 203(b)(2) (notice of appeal must be served within ten days following sentencing). His federal time began to run the following day, January 20, 2012. Petitioner filed his PCR application on September 6, 2012, after a lapse of 230 days, leaving 135 days of untolled time. The statute of limitations remained tolled until, at the very latest, June 8, 2015, upon the filing of the remittitur in Sumter County after the South Carolina Supreme Court's May 20, 2015, order denying the petition for writ of certiorari.
Petitioner is barred from federal habeas review unless he has demonstrated that he diligently has been pursuing his rights and that extraordinary circumstances prevented his timely filing, which could equitably toll the statute of limitations.
To benefit from the doctrine of equitable tolling, Petitioner must show "`(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland at 659 (quoting Pace, 544 U.S. at 418); see also Rouse, 339 F.3d at 246 (holding that, for equitable tolling to apply, petitioner must show that there was 1) an "`extraordinary circumstance,' 2) beyond his control or external to his own conduct, 3) that prevented him from filing on time.").
The undersigned is of the opinion that Petitioner's untimely filing should not be excused by equitable tolling under Holland's two-pronged test. First, Petitioner has not demonstrated he was reasonably diligent in pursuing his rights below. Petitioner's tardiness in filing this petition in no manner suggests that he diligently pursued his rights. Petitioner appears to seek habeas relief, inter alia, on the ground that his lawyer did not file a direct appeal. [ECF No. 1 at 7]. Even so, Petitioner has failed to demonstrate that he had been pursuing his rights diligently before he filed his first PCR application on September 6, 2012. Petitioner waited nearly eight months to file his PCR application, which the undersigned finds is evidence that Petitioner was not pursuing his rights diligently. See also Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) ("[I]gnorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.") (internal quotations omitted); Cross-Bey v. Gammon, 322 F.3d 1012, 1015 (8th Cir. 2003) (rejecting equitable tolling where petitioner alleged lack of legal knowledge and legal resources), cert. denied, 540 U.S. 971 (2003); see also Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (concluding equitable tolling applies only in rare instances where due to circumstances so external to the petitioner's own conduct, it would be unconscionable to enforce the limitation against the petitioner).
For these reasons, the undersigned is of the opinion that Petitioner has not satisfied the first-prong of Holland's two-pronged test for equitable tolling. Holland requires a petitioner to establish both prongs of the test to show entitlement to equitable tolling, so the court could end its analysis here.
Independently, the undersigned finds that Petitioner cannot satisfy the second prong of the test because he has not set forth facts that could demonstrate an "extraordinary circumstance" kept him from timely filing this action. Petitioner has not presented any facts sufficient to permit a finding of an extraordinary circumstance that could entitle Petitioner to equitably toll the AEDPA's statute of limitations. The court rejects Petitioner's argument that he is entitled to equitable tolling on account of having been held in solitary confinement. [ECF No. 21 at 1]. "While solitary confinement does present an obstacle to filing a timely habeas petition, it does not qualify as an extraordinary circumstance." Hizbullahankhamon v. Walker, 105 F.Supp.2d 339, 344 (S.D.N.Y. 2000), aff'd, 255 F.3d 65 (2d Cir. 2001). "[L]ockdowns, restricted library access and transfers do not constitute extraordinary circumstances sufficient to equitably toll the AEDPA statute of limitations. Prisoners familiar with the routine restrictions of prison life must take such matters into account when calculating when to file a [habeas] petition." Atkins v. Harris, 98 Civ. 3188, 1999 WL 13719, at *2 (N.D. Cal. Jan. 7, 1999). Accordingly, Petitioner is not entitled to equitable tolling during any period of solitary confinement. Coker v. Warden, Lee Corr. Institution, No. 11-1842, 2012 WL 3115856 (D.S.C. July 30, 2012) (petitioner not entitled to equitable tolling despite allegations of prison lock downs interfering with time to file his petition). Even if the court were to equitably toll Petitioner's statute of limitation period for the duration of his solitary confinement from September 2 to October 12, 2015, his filing would still be barred as untimely.
Accordingly, the undersigned is of the opinion that the petition should be dismissed on statute-of-limitations grounds. The filing was untimely, and Petitioner has not presented facts sufficient to support his argument that the limitations period should be equitably tolled. See Harris, 209 F.3d at 330 (noting petitioner has burden of showing equitable tolling). Having found that the statute of limitations bars Petitioner's § 2254 petition, the undersigned is precluded from addressing the merits of his 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).
For the foregoing reasons, the undersigned recommends that Respondent's motion for summary judgment [ECF No. 16] be granted.
IT IS SO RECOMMENDED.
