Petition for Writ of Certiorari — Joshua Andrew Monroe, Petitioner v. Scott Lewis, Warden

(.

IN THE

SUPREME COURT OF THE UNITED STATES

Joshua A. Monroe

Petitioner,

-vs-

Warden Lewis# et al — Respondent#

APPENDIX A

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-6442

JOSHUA ANDREW MONROE,

Petitioner - Appellant,

v.

WARDEN SCOTT LEWIS, Perry Correctional Institution,

Respondent - Appellee.

If

Appeal from the United States District Court for the District of South Carolina, at

Greenville. R. Bryan Harwell, Chief District Judge. (6:18-cv-00561-RBH)

Submitted: October 15, 2019

Decided: October 17, 2019

Before GREGORY, Chief Judge, and THACKER and RUSHING, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Joshua Andrew Monroe, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

!

PER CURIAM:

Joshua Andrew Monroe seeks to appeal the district court’s order accepting the

recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2012)

petition. The order is not appealable unless a circuit justice or judge issues a certificate of

appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate of appealability will not

issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies

this standard by demonstrating that reasonable jurists would find that the district court’s

assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S.

473,484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district

court denies relief on procedural grounds, the prisoner must demonstrate both that the

dispositive procedural ruling is debatable, and that the petition states a debatable claim of

the denial of a constitutional right. Slack, 529 U.S. at 484-85.

We have independently reviewed the record and conclude that Monroe has not made

the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the

appeal. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

DISMISSED

2

p

y .S=

IN THE

SUPREME COURT OF THE UNITED STATES

Joshua A- Monroe — Petitioner*

-vs-

Warden Lewis* et al — Respondent/

APPENDIX B

6:18-cv-00561-RBH

Date Filed 03/15/19

Entry Number 38

Page 1 of 6

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

GREENVILLE DIVISION

Joshua Andrew Monroe,

Petitioner,

v.

Warden Louis,

Respondent.

Civil Action No.: 6:18-561-RBH

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ORDER

This matter is before the Court on the Report and Recommendation (“R&R”) of United States

Magistrate Judge Kevin F. McDonald.1 [ECF No. 27], The Magistrate Judge recommends the Court

grant Respondent Warden Louis’s motion for summary judgment [ECF No. 15] and dismiss as untimely

Petitioner Joshua Andrew Monroe’s pro se petition under 28 U.S.C. § 2254 (the “§ 2254 petition”)

[ECF No. 1] with prejudice. R&R at 11, 14.

Standard of Review

The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s

recommendation has no presumptive weight, and the responsibility to make a final determination

remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a

de novo review of those portions of the R&R to which specific objections are made, and the Court may

accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit

the matter with instructions. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). However, the Court need

1

The Magistrate Judge issued the R&R in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule

73.02 (D.S.C.), reviewing the § 2254 petition pursuant to the screening provisions of 28 U.S.C. §§ 1915(e)(2) and

1915 A. The Court is mindful of its duty to liberally construe the pleadings ofpro se litigants. See Gordon v. Leeke,

574 F.2d 1147, 1151 (4th Cir. 1978); but see Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)

(“Principles requiring generous construction of pro se complaints are not, however, without limits. Gordon directs

district courts to construe pro se complaints liberally. It does not require those courts to conjure up questions never

squarely presented to them.”).

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Entry Number 38

Page 2 of 6

not conduct a de novo review of “general and conclusory objections that do not direct the [CJourt to a

specific error in the [Magistrate [Judge]’s proposed findings and recommendations.” Orpiano v.

Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R&R, the Court

reviews only for clear error. Diamond v. Colonial Life & Accident Insurance Co., 416 F.3d 310, 315

(4th Cir. 2005).

Discussion2

Petitioner, a state inmate at the Perry Correctional Institution of the South Carolina Department

of Corrections, brings this action pro se under 28 U.S.C. § 2254 for a writ of habeas corpus by a person

in state custody against Respondent. See Pet. at 1 [ECF No. 1]. In support of his § 2254 petition filed

•on or about February 22,20183, Petitioner raises two grounds: (1) “the courts erred in not entering into

the official record the plea taken by Judge Nicholson”; and (2) “Judge Young erred in replacing Judge

Nicholson and not familiarizing himself with the case and then making a sentence on a case that had

no official judgment.” Pet. at 5, 7 .

On May 22, 2018, Respondent filed the instant motion for summary judgment. [ECF No. 15].

On or about June 15, 2018, Petitioner filed a response in opposition [ECF No. 19], and on June 21,

2018, Respondent filed a reply thereto. [ECF No. 21], On or about July 3, 2018, Petitioner filed a sur

reply. [ECF No. 22], On January 7, 2019, the Magistrate Judge issued the R&R, recommending the

Court grant Respondent’s motion for summary judgment and dismiss the case because Petitioner’s

grounds for relief are procedurally barred as untimely and, furthermore, fail on the merits. See R&R

2

The R&R thoroughly summarizes the factual and procedural background of this case, as well as the

applicable legal standards. See R&R at 1-7.

3

See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding that a prisoner’s pleading is filed at the moment

of delivery to prisoner authorities for forwarding to the district court).

2

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Entry Number 38

Page 3 of 6

at 7-11 (untimeliness), 11-13 (merits review). Also, the R&R declines to address an additional ground

raised for the first time in Petitioner’s response to the motion for summary judgment. R&R at 14. The

Magistrate Judge specifically advised the parties of the procedure for filing objections to the R&R and

the consequences if they failed to do so. R&R at 15.

On or about February 14, 2019, after receiving an extension of time, Petitioner timely filed

objections to the R&R. [ECF No. 36]. In his objections, Petitioner asserts the Magistrate Judge erred

in: (1) finding that the § 2254 petition is barred by the AEDPA statute of limitations, Objs. at 1-3; (2)

adopting Respondent’s “mischaracterization” of the state court record, id. at 3—4; (3) the factual findings

on the § 2254 petition’s second ground, id. at 4-5; and (4) failing to consider Petitioner’s new

-allegations raised via his response in opposition to the motion for summary judgment. Id. at 6-7.

1.

First Objection

In the first objection, Petitioner argues his petition is timely because remittitur was issued on

October 11, 2012. Objs. at 2. He further contends that even if it was untimely, he is entitled to

equitable tolling. Id. at 3. As explained below, the Court agrees with the R&R that the § 2254 petition

was untimely by one day and Petitioner is not entitled to equitable tolling.

a.

Timeliness

As applied to this case, the AEDPA’s one-year statutory deadline runs from “the date on which

the judgment became final by the conclusion of direct review or the expiration of time for seeking such

review.” 28 U.S.C. § 2244(d)(1)(A). Properly filed applications for state post-conviction or other

collateral review (“PCR proceedings”) toll this deadline. 28 U.S.C. § 2244(d)(2). This means that state

PCR proceedings suspend the one-year deadline; they do not restart the clock. Harris v. Hutchinson,

209 F.3d 325, 327-28 (4th Cir. 2000). Here, Petitioner was sentenced on February 3, 2011, and his

3

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Page 4 of 6

notice of direct appeal was dismissed on September 18, 2012. His time for seeking a petition for

rehearing expired 15 days later; therefore, his conviction became final on October 3, 2012—the date

the one-year AEDPA deadline commenced. See Rule 221(a), SCACR (15-day deadline). On

September 17, 2013—349 days after the AEDPA deadline began to run and with 16 days

left—Petitioner timely filed a state PCR application,4 stopping the AEDPA clock. [See EOF No. 16-1

at 85], The state PCR action concluded on February 5, 2018, when the Clerk of Court filed the

remittitur from the PCR appeal, [see ECF No. 16-14], and the AEDPA clock began to run again with

16 days left. Von Long v. Warden, Broad River Corr. Inst., Civil Action No.: 4:18-cv-02223-RBH,

2018 WL 5800848 (D.S.C. Nov. 6,2018) (citingBeatty v. Rawski, 97 F. Supp. 3d 768, 775-76 (D.S.C.

*2015)) (holding that, for purposes of determining the date when a case is no longer pending under §

* .

•A

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2244(d)(2), final disposition of a PCR proceeding in South Carolina occurs when the remittitur is filed

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in the state circuit court). On February 21,2018, the AEDPA deadline expired. On February 22,2018

Petitioner filed the § 2254 petition, untimely by one day. Therefore, the Court agrees with the R&R that

the § 2254 petition is barred as untimely by the AEDPA’s one-year deadline.

b.

Equitable Tolling

Petitioner asserts equitable tolling is warranted because he “was not informed of the dismissal

of his direct appeal until March 21,2013 upon receiving [notice] from Chief Appellate Defender Robert

M. Dudek.” Objs. at 4. To equitably toll the AEDPA deadline, Petitioner has the burden of showing:

“(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood

in his way and prevented timely filing.” Von Long, 2018 WL 5800848, at *2 (citing Holland v. Florida,

560 U.S. 631, 645 (2010)). The Court agrees with the R&R that Petitioner is not entitled to equitable

4

See Gary v. State, 557 S.E.2d 662,663 (S.C. 2001) (citing S.C. Code § 17-27-40) (in South Carolina, filing

of state PCR petition occurs when the application is delivered to and received by the Clerk of Court).

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tolling because he has not shown that he pursued his rights diligently or that some extraordinary

circumstance prevented him from timely filing his petition. Even if tolling applied, his claim would

still fail.

2.

Second and Third Objections

Petitioner’s second and third objections are essentially the same. In the second objection,

Petitioner claims there is no official record of his state court proceedings. Objs. at 3. The third

objection is based on an allegedly “inaccurate transcript” of the state court proceedings. Objs. at 4-5.

The Court agrees with the R&R that although Petitioner alleges there is no official record of his

proceedings, Respondent has provided a transcript of his plea and sentencing hearing. [See ECF No.

16-1]. Moreover, the Charleston County Clerk of Court maintains a valid record of sentencing, as the

Clerk of Court has certified the copies of the sentencing sheets, which are attached to Respondent’s

memorandum in support of summary judgment. [See ECF No. 16-2], Accordingly, there is an official

and accurate record of Petitioner’s state court proceedings that the Magistrate Judge properly

considered. Regardless, because these claims lie in state law and procedure, they are not cognizable

under § 2254. See Wilson v. Cocoran, 562 U.S. 1, 5 (2010) (“[I]t is only noncompliance with federal

law that renders a State’s criminal judgment susceptible to collateral attack in the federal courts.”).

4.

Fourth Objection

In the fourth objection, Petitioner asserts the Magistrate Judge erred in refusing to consider his

claim of ineffective assistance of counsel raised for the first time in Petitioner’s response to summary

judgment. The R&R correctly notes that it is “well-settled in this district that new matters cannot be

raised in a response to a motion for summary judgment.” R&R at 14 (citing White v. Roche Biomedical

Labs., Inc., 807 F. Supp. 1212, 1216 (D.S.C. 1992); Neumon v. Cartledge, C.A. No. 8:14-cv-2256RMG, 2015 WL 4607732, at *9 n.9 (D.S.C. July 31, 2015)). The Court agrees and will not consider

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this new allegation. Accordingly, Petitioner’s fourth objection lacks merits.

Certificate of Appealability

A certificate of appealability will not issue absent “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a

prisoner satisfies this standard by demonstrating reasonable jurists would find the court’s assessment

of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see

Miller-El v. Cockrell, 537 U.S. 322, 336—38 (2003). When the district court denies relief on procedural

grounds, the prisoner must demonstrate both the dispositive procedural ruling is debatable and that the

petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. In

. *

Sr *<rt

-this case, the Court concludes that Petitioner has not made the requisite showing of “the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2).

Conclusion

The Court has thoroughly reviewed the entire record, including the R&R and objections, and

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the applicable law. For the foregoing reasons, the Court adopts and incorporates by reference the R&R

'[ECF No. 27]. Accordingly, the Court GRANTS Respondent’s motion for summary judgment [ECF

No. 15] and DISMISSES Petitioner’s § 2254 petition [ECF No. 1] with prejudice. Furthermore, the

Court DENIES a certificate of appealability.

IT IS SO ORDERED.

s/ R. Bryan Harwell

R. Bryan Harwell

United States District Judge

Florence, South Carolina

March 15,2019

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