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0:12-cv-02912-JFA Date Filed 06/04/13 Entry Number 33 Page 1 of 5


Winston Harris,



______________________________________ )

Leroy Cartledge,


C/A No. 0:12-2912-JFA-PJG


The pro se petitioner, Winston Harris, is an inmate with the South Carolina

Department of Corrections. He brings this action pursuant to 28 U.S.C. § 2254 challenging

his state court convictions for armed robbery, assault and battery of a high and aggravated

nature, and possession of a weapon during a violent crime.

The Magistrate Judge assigned to this action has prepared a thorough Report and


Recommendation and opines that the respondent’s motion for summary judgment should be


granted because the petition is untimely. The Report sets forth in detail the relevant facts and

standards of law on this matter, and the court incorporates such without a recitation and

without a hearing.


The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews
v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).


An order was issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying petitioner
of the summary dismissal procedure and possible consequences if he failed to adequately respond to the
motion for summary judgment. Petitioner responded to the motion.


0:12-cv-02912-JFA Date Filed 06/04/13 Entry Number 33 Page 2 of 5

The petitioner was advised of his right to file objections to the Report and

Recommendation, which was entered on the docket on April 4, 2013. The petitioner filed

timely objections to the Report. Thus, this matter is ripe for review.

The Report recites the factual and procedural background giving rise to this action.

Briefly, the petitioner was tried by a jury and found guilty as charged and was sentenced to

35 years imprisonment. He filed an unsuccessful appeal which was denied and the remittitur

was issued on June 29, 2004. On August 2, 2004, petitioner filed his first post-conviction

relief application (PCR). The PCR was denied on December 1, 2006. Harris filed a second

PCR on October 2, 2008. The parties signed a consent order of dismissal on November 3,

2009, dismissing the October 2008 PCR action and allowing Harris to file a belated appeal

to seek appellate review under Austin v. State, 409 S.E.2d 395 (S.C. 1991), to review his

2004 PCR application. On April 2, 2010, the PCR court denied Harris’s motion to rescind

the consent order of dismissal, but held that he was still entitled to pursue a belated appeal.

The South Carolina Court of Appeals granted Harris’s petition for writ of certiorari

pursuant to Austin v. State, and after review, denied Harris’s petition from the final order in

the 2004 PCR. The remittitur was issued on September 7, 2012, and Harris filed the instant

§ 2254 petition on October 4, 2012.

In his present petition, Harris contends that (1) trial counsel rendered ineffective

assistance when counsel failed to object to the State’s closing argument; (2) PCR counsel

rendered ineffective assistance of counsel by failing to argue that appellate counsel was

ineffective for failing to argue prosecutorial misconduct in the direct appeal; and (3)

appellate counsel rendered ineffective assistance of counsel.


0:12-cv-02912-JFA Date Filed 06/04/13 Entry Number 33 Page 3 of 5

In his motion for summary judgment, the respondent asserts that the petition should

be dismissed as untimely under the Anti-Terrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub.L.No. 104-132, 110 Stat. 1214 (AEDPA). The one-year statute of limitations

began to run on the date petitioner’s convictions became final, not at the end of collateral

review. Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000). Here, petitioner filed a

direct appeal so his conviction became final on June 29, 2004. Because he did not seek

certiorari from the South Carolina Supreme Court, Harris was not entitled to an additional

tolled time of 90 days. Accordingly, the limitations period began to run on June 30, 2004

and expired on June 29, 2005, unless the period was tolled for any properly filed state PCR


Harris’s first PCR was filed on August 2, 2004, leaving 33 days of non-tolled time

since the statute of limitations began. That period was tolled during the pendency of his 2004

PCR action, which was dismissed on December 1, 2006. No appeal was taken from that

order, thus the decision became final on December 31, 2006. From this date, Harris had 332

days of statutory time remaining, with the period expiring on November 28, 2007.

On October 2, 2008, Harris filed a second PCR. However, this application did not toll

the statute of limitations because it was filed after the one-year statute of limitations expired

on November 28, 2007. As the Magistrate Judge notes in her Report, state PCR hearings

must commence prior to the expiration of the federal statutory period. 28 U.S.C. § 2244.

Because it was not filed before the expiration of the statute of limitations, his second PCR

did not toll or revive the already expired deadline.


0:12-cv-02912-JFA Date Filed 06/04/13 Entry Number 33 Page 4 of 5

As noted earlier in this order, Harris was granted a belated appeal from his 2004 PCR

application under Austin v. State. However, because there was no pending collateral action

during the time between the state court’s initial denial of the PCR application and the state

court’s allowance of a belated appeal, the limitations period was not tolled and it expired on

November 28, 2007.

The Magistrate Judge further opines that the petitioner has failed to advance any

argument refuting the untimeliness of his petition and has failed to establish grounds for

equitable tolling. In his objections to the Report, the petitioner merely states that he is

entitled to equitable tolling due to his diligence and extraordinary circumstances. Petitioner

has failed to establish that his petition is timely or that he is entitled to equitable tolling under

Pace v. DiGulielmo, 544 U.S. 408, 414 U.S. 4, 8 (2000). Moreover, he cannot claim that his

attorney’s alleged mistake in advising him about the filing date for a federal habeas petition

under the AEDPA is not an extraordinary circumstance to warrant equitable tolling.

After carefully reviewing the applicable laws, the record in this case, the Report and

Recommendation, and the objections thereto, this court finds the Magistrate Judge’s

recommendation fairly and accurately summarizes the facts and applies the correct principles

of law. The Report is incorporated herein by reference, and the petitioner’s objections are

overruled. Accordingly, the respondent’s motion for summary judgment (ECF No. 17) is

granted and the § 2254 petition is denied.

IT IS FURTHER ORDERED that a certificate of appealability is denied because the

petitioner has failed to make “a substantial showing of the denial of a constitutional right.”


0:12-cv-02912-JFA Date Filed 06/04/13 Entry Number 33 Page 5 of 5

28 U.S.C. § 2253(c)(2).3


June 4, 2013
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge


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) (West 2009). A prisoner satisfies this standard by demonstrating that
reasonable jurists would find both that his constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322,
336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001).
In the instant matter, the court finds that the petitioner has failed to make “a substantial showing of the denial
of a constitutional right.”