Beatty v. Rawski (97 F. Supp. 3d 768, 2015)

Citations

97 F. Supp. 3d 768

Full opinion text

ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT AND DISMISSING PETITIONER’S HABEAS PETITION WITH PREJUDICE

MARY G. LEWIS, District Judge.

I. INTRODUCTION

This case was filed as a 28 U.S.C. § 2254 action. Petitioner is represented by excellent counsel. The matter is before this Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that Respondent’s motion for summary judgment be granted and Petitioner’s habeas petition be dismissed with prejudice. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.

The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The Court is charged with making a de novo determination of those portions of the Report 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 with instructions. 28 U.S.C. § 636(b)(1).

The Magistrate Judge filed the Report on January 29, 2015, and Petitioner filed her objections on March 16, 2015.

II. PETITIONER’S GROUNDS FOR RELIEF

Petitioner raises four grounds for relief in her § 2254 petition:

Ground One: Plea counsel failed to provide the Petitioner effective assistance of counsel prior to and during her guilty pleas, in violation of her rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, in that he failed to prepare and investigate'her case and specifically neglected to review the discovery material in Petitioner’s case with her and failed to discuss possible uses of some of the information contained therein to formulate potential defenses to her charges.

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Ground Two: Plea counsel failed to provide the Petitioner effective assistance of counsel prior to and during her guilty pleas, in violation of her rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, in that he failed to address and/or properly investigate the Petitioner’s medical and mental health history. Counsel’s failure to adequately investigate the Petitioner’s medical history resulted in pleas which were not knowingly and voluntarily entered in that she pleaded guilty in reliance upon plea counsel to be prepared to effectively represent her in presenting evidence in mitigation of the sentences to be imposed.

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Ground Three: Plea counsel failed to provide the Petitioner effective assistance of counsel prior to and during her guilty pleas, in violation of her rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, in that he misinformed the Petitioner regarding the plea negotiations in her case and the potential sentences she could expect to receive as a consequence of her pleas and thereby made it impossible for her to make a voluntary and intelligent decision to enter pleas of guilty on her charges.

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Ground Four: Plea counsel failed to provide the Petitioner effective assistance of counsel prior to and during her guilty pleas, in violation of her rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, in that he failed to adequately prepare for either the Petitioner’s original plea proceeding or her subsequent hearing on a post-plea Motion to Reconsider Sentencing specifically failing to present readily available evidence in mitigation which would have potentially have been of significant benefit to the Petitioner on the issue of sentencing. Her pleas of guilty were not knowingly and voluntarily entered in that they were the product of ineffective assistance of counsel.

Petition Attachment One 6.

III. DISCUSSION

A. Statute of Limitations

First, the Magistrate Judge asserts that Petitioner failed to file her habeas petitioner before the expiration of the statute of limitations had run under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which states, in relevant part:

(d)(1) 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. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

In the Magistrate Judge’s Report, she sets out in detail both (1) her view of the law as it pertains to when Petitioner’s statute of limitations was tolled -as it relates to AEDPA and (2) the procedural history of the case. This Court sees no reason to repeat that material here.

Petitioner does not object to the Magistrate Judge’s recitation of the procedural history. And, the only portion of the Magistrate Judge’s legal analysis that Petitioner disagrees with are the Magistrate Judge’s statements that “[t]he statute of limitations remained tolled until the Court of Appeals denied [Petitioner’s] petition for rehearing and rehearing en banc on September 21, 2012. The statute of limitations resumed on September 22, 2012, and expired (the first business day) 365 days later, on September 22, 2013.” Report 11. Thus, according to the Magistrate Judge, because Petitioner failed to file her habeas petition until November 7, 2013, forty-six days after the statute of limitations had run, “Petitioner’s habeas petition is untimely under 28 U.S.C. § 2244(d).” Id.

According to Petitioner, however, the statute of limitations was tolled until November 8, 2012, the date that the South Carolina Court of Appeals issued the re-mittitur in the case. So, this disagreement is of grave importance. If the Magistrate Judge is correct, then Petitioner’s habeas petition is barred by AEDPA’s one-year statute of limitations. But, if the Petitioner is correct, then it is not.

Subsection 2244(d)(1)(A) encompasses review of a State conviction by the Supreme Court and § 2244(d)(2) is exclusively concerned with “State post-conviction or other [State] collateral review.” Lawrence v. Florida, 549 U.S. 327, 333, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (“Indeed, we [have] noted that the Courts of Appeals have uniformly interpreted ‘direct review in § 2244(d)(1)(A) to encompass review of a state conviction by this Court. By contrast, § 2244(d)(2) refers exclusively to State post-conviction or other state collateral review, language not easily interpreted to include participation by a federal court.”) (internal citation omitted) (internal quotation marks omitted) (internal alteration omitted). It is for that reason that the Court is unpersuaded by any argument that Gonzalez v. Thaler, — U.S. -, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012), essentially overruled the Florida mandate requirement discussed in Lawrence. Gonzalez is concerned with when a State conviction becomes final under § 2244(d)(1)(A). Id. at 646. But Lawrence is concerned with when a State post-conviction habeas petition is final under § 2244(d)(2). See Gonzalez, 132 S.Ct. at 654 n. 10 (“[The petitioner] also argues that Lawrence ... supports his focus on the state court’s issuance of the mandate because it referred to a mandate in determining when state postconviction proceedings were no longer pending. Lawrence, however, is inapposite. The case involved a different provision, 28 U.S.C. § 2244(d)(2), which by its terms refers to ‘State’ procedures.”); Gonzalez v. Thaler, 623 F.3d 222, 225 (5th Cir.2010) (“Although the Court references the State court’s mandate in Laivrence, the references were to the State court’s mandate denying the prisoner’s state post-conviction habeas petition, not the mandate affirming his original conviction. It is unlikely that the Court intended to implicitly hold that a state conviction is final under § 2244(d)(1) when the mandate issues while discussing the finality of a state ha-beas claim in the context of a different statutory component of the AEDPA.”) (citation omitted) (internal quotation marks omitted) (alteration omitted).

Both the Magistrate Judge and Petitioner agree that the outcome of this case is controlled by 28 U.S.C. § 2244(d)(2) (“The time during which a properly filed application for State postconviction or other [State] collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”). The Fourth Circuit has “construed a state post-conviction proceeding to include all state-court proceedings ‘from initial filing [in the trial court] to final disposition by the highest state court.’ ” Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir.2000) (quoting Taylor v. Lee, 186 F.3d 557, 561 (4th Cir.1999)). “Upon final disposition of the state post-conviction proceeding, the running of the § 2244(d) one-year period resumes.” Id. Therefore, the only question before this Court to decide is when the final disposition of an appeal in South Carolina occurs.

As the Supreme Court noted in Gonzalez, the answer to that question varies from state to state: “Compare, e.g., PSL Realty Co. v. Granite Inv. Co., 86 Ill.2d 291, 304, 56 Ill.Dec. 368, 427 N.E.2d 563, 569 (1981) (judgment is final ‘when entered’); Gillis v. F & A Enterprises, 934 P.2d 1253, 1256 (Wyo.1997) (judgment is final when ‘opinion is filed with the clerk’), with Ex parte Johnson, 12 S.W.3d 472, 473 (Texas CCA 2000) (per curiam) (judgment is final at ‘issuance of the mandate’).” Gonzalez, 132 S.Ct. at 655 n. 11. See also Lawrence, 549 U.S. at 331, 127 S.Ct. 1079 (implicitly finding that the final disposition of a Florida appeal occurs when the mandate issues, based on the Court’s statement that “the parties agree that AED-PA’s limitations period was tolled from the filing of [the petitioner’s] petition for state postconviction relief until the Florida Supreme Court issued its mandate affirming the denial of that petition.”); Harris, 209 F.3d at 328 (stating that a State postcon-viction action was no longer pending in a Maryland case as it relates to § 2244(d)(2) once “the Maryland Court of Appeals denied [the petitioner’s] application for leave to appeal the denial of his petition.”); Gray v. Waters, 26 F.Supp.2d 771, 772 (D.Md.1998) (“[F]inal disposition of [the petitioner’s] state [habeas] petition ... occurred ... when the Court of Special Appeals of Maryland denied his application for leave to appeal.” (citing Md. Cts. & Jud. Proe.Code Ann., Section 12-202)); Meierer v. Meierer, 876 S.W.2d 36, 37 (Mo.Ct.App.1994); (“[T]he issuance of the ... order by the appellate court did not complete the appeal” but rather “a decision of the appellate court is considered final at the time the mandate is issued.”); Rule 26(a) of the West Virginia Revised Rules of Appellate Procedure (“Unless otherwise provided, an opinion of the Court or memorandum decision of the Court considering the merits of a case is not final until the mandate has been issued.”)

But again, what this Court must decide today is when South Carolina law says that the final disposition of a case on appeal takes place. According to Rule 221(b), SCAR, “The remittitur shall contain a copy of the judgment of the appellate court, shall be sealed with the seal and signed by the clerk of the court, and unless otherwise ordered by the court shall not be sent to the lower court or administrative tribunal until fifteen (15) days have elapsed, (the day of filing being excluded) since the filing of the opinion, order, judgment, or decree of the court finally disposing of the appeal.” From this Court’s careful reading of this rule, it appears that, according to the rule, the final disposition of an appeal in South Carolina occurs with “the filing of the opinion, order, judgment, or decree of the court -finally disposing of the appeal.” Id. But, South Carolina highest courts have uniformly rejected that view. See, e.g., Harleysville Mut. Ins. Co. v. State, 401 S.C. 15, 23, n. 2, 736 S.E.2d 651, 655 n. 2 (2012) (“An opinion of an appellate court is not final until the remit-titur is filed in the lower court”); Brackenbrook North Charleston, LP v. Cnty. of Charleston, 366 S.C. 503, 508, 623 S.E.2d 91, 93 (2005) (“Where there has been an appeal, ‘final disposition of the case’ occurs when the remittitur is filed in the circuit court.”) (quoting McDowell v. S.C. Dep’t of Soc. Serv., 300 S.C. 24, 26, 386 S.E.2d 280, 282 (1989)); Christy v. Christy, 317 S.C. 145, 151, 452 S.E.2d 1, 4(1994) (“The final disposition of a case occurs when the re-mittitur is returned by the clerk of the appellate court and filed in the lower court. Until that time, the case is pending on appeal.”) (citation omitted).

Consequently, in that there can be no question that South Carolina law states that the final disposition of an appeal does not occur until after the remittitur is filed in the circuit court, what is this Court to do with the holding in Taylor, 186 F.3d at 561, in which the Fourth Circuit held “that under § 2244(d)(2) the entire period of state post-conviction proceedings, 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), is tolled”? Taylor cites with approval Gaskins v. Duval, 183 F.3d 8, 10 (1st Cir.1999) (“Applying the tolling provision encourages respect for the principle of comity and compliance with the requirement that, ordinarily, a state prisoner must first exhaust his state court remedies before seeking federal habeas relief.”).

As one can see, there is no mention in Taylor that a remittitur counts as the final disposition of an appeal for tolling purposes. But, although Taylor fails to use the word “remittitur” in the parenthetical of what the “final disposition by the highest state court” includes, this Court thinks that to be of no import. First, the Court is of the opinion that the parenthetical after the term “final disposition by the highest state court” was not meant to be all inclusive, but merely descriptive. Second, even if the parenthetical was meant to be all inclusive, then Lawrence overruled that portion of Taylor in that Taylor fails to include the issuance of a mandate as a proper way that one can determine whether the “final disposition of the highest state court” has occurred either. But, Lawrence clearly allowed it. Third, inasmuch as the words “mandate” and “remit-titur” are practically synonymous, this Court is of the opinion that, in light of Lawrence, Taylor does not forbid South Carolina’s remittitur rule as being the “final disposition of the highest state court.” And fourth and finally, if the list in Taylor is still somehow interpreted to be all inclusive, even in light of binding authority from Lawrence to the contrary, and/or if the words “mandate” and “remittitur” are not synonymous, then the term “final disposition by the highest state court” in regards to § 2244(d)(2) has no effect here in South Carolina. And, of course, that can not be.

One other question: what does this Court do with the Supreme Court’s holding in Lawrence that “[a]fter the State’s highest court has issued its mandate or denied review, no other state avenues for relief remain open”? Lawrence, 549 U.S. at 332, 127 S.Ct. 1079. First, this Court concludes that the term “direct review” is the Supreme Court’s acknowledgment that in some states, a state post-conviction proceeding is still pending until the state’s highest court has denied review. But, as in Taylor, this Court does not think that “[ajfter the State’s highest court has issued its mandate or denied review,” id., is an all inclusive list. The Court acknowledged as much when it stated, “[rjead naturally, [§ 2244(d)(2)’s] text means that the statute of limitations is toiled only while state courts review the application. A state postconviction application ‘remains pending’ ‘until the application has achieved final resolution through the State’s post-conviction procedures.’ ” Lawrence, 549 U.S. at 332, 127 S.Ct. 1079 (quoting Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002)). As the reader is aware, “final resolution through the State’s postconviction procedures[,j” id., varies from state to state.

Second, inasmuch as the Court allowed Florida’s issuance of the mandate to mark the time when the petitioner’s “application has achieved final resolution through the State’s postconviction procedures,” id., and the words “mandate” and “remittitur” are essentially synonymous, the Court is of the opinion that Lawrence allows South Carolina’s remittitur rule to determine when the petitioner’s “application has achieved final resolution through the State’s post-conviction procedures,” id. as well.

And third, even if “mandate” and “re-mittitur” are not synonymous, this Court can fathom of no reason why the Court would allow “final resolution through the State’s postconviction procedures,” id., to include “[ajfter the State’s highest court has issued its mandate or denied review,” Lawrence, 549 U.S. at 332, 127 S.Ct. 1079, but not include “when the remittitur is filed in the circuit court.” Brackenbrook, 623 S.E.2d at 93. After all, “final resolution through the State’s postconviction procedures,” Lawrence, 549 U.S. at 332, 127 S.Ct. 1079, does not occur in South Carolina until “the remittitur is filed in the circuit court.” Brackenbrook, 623 S.E.2d at 93.

From the record before it, the Court is unable to determine when the remittitur was .filed in the circuit court. But, for purposes of this case, that missing information is of no moment. What the Court does know is that the remittitur was certainly not filed in the circuit court until on or after November 8, 2012, the date the remittitur was issued. Consequently, inasmuch as the remittitur was filed with the circuit court sometime on or after November 8, 2012, South Carolina law instructs us that Petitioner’s “properly filed application for State post-conviction or other [State] collateral review with respect to the pertinent judgment or claim,” § 2244(d)(2), was still pending on November'8, 2012. Consequently, inasmuch as Petitioner filed her § 2254 action on November 7, 2013, her habeas petition was not time barred by the AEDPA one-year statute of limitations.

B. Equitable Tolling

Second, the Magistrate Judge opines that Petitioner is unable to demonstrate that she is entitled to equitable tolling. In light of the Court’s decision above, this issue is moot. And, had it not been moot, because Petitioner neglected to address the issue in her objections, the argument would have been waived.

C. Merits

Third, the Magistrate Judge states that, even if Petitioner’s petition is not time-barred, Petitioner still loses on the merits.

All four of Petitioner’s Grounds for relief are based on the alleged ineffective assistance of Petitioner’s plea counsel. To demonstrate ineffective assistance of counsel, Petitioner is required to establish (1) that her counsel’s performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that but for counsel’s error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The United States Supreme Court has cautioned that “ ‘[sjurmounting Strickland’s high bar is never an easy task[,]’ ... [establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011).

This Court “may only grant [Petitioner] relief if the state court’s adjudication of his claims (1) ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,’ 28 U.S.C. § 2254(d)(1); or (2) ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,’ 28 U.S.C. § 2254(d)(2).” Larry v. Branker, 552 F.3d 356, 365 (4th Cir.2009).

In regards to the filing of objections to the Report, the Magistrate Judge instructed Petitioner as follows:

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).

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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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir.1985); United States v. Schronce, 727 F.2d 91 (4th Cir.1984).

Report 34. Nevertheless, instead of lodg ing any specific objections to the Report in the merits section of her brief, Petitioner does nothing more than make arguments that the Magistrate Judge has already considered and rejected. Because the Court agrees with the Magistrate Judge’s cogent analysis, it need not spill any more ink discussing the issues a second time here. Simply put, although Petitioner’s habeas petition was timely, she is unable to demonstrate that she is entitled to habe-as relief.

IV. CONCLUSION

After a thorough review of the Report and the record in this case pursuant to the-standards set forth above, the Court overrules Petitioner’s objections, adopts the Report to the extent that it does not contradict this Order, and incorporates it herein. Therefore, it is the judgment of this Court that Respondent’s motion for summary judgment is GRANTED and Petitioner’s habeas petition is DISMISSED WITH PREJUDICE without an evidentia-ry hearing.

An order denying relief in a § 2254 proceeding such as this is not appealable unless a circuit or district judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability will issue only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. MillerEl v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). The Court has reviewed the petition, the record and the applicable case law and concludes that Petitioner has failed to make the requisite showing. Therefore, Petitioner motion for a certificate of ap-pealability from this Court is DENIED.

IT IS SO ORDERED.

ORDER DENYING RESPONDENT’S RULE 59(E) MOTION

MARY G. LEWIS, District Judge.

I. INTRODUCTION

Petitioner filed this case as a 28 U.S.C. § 2254 action. Pending before the Court is Respondent’s Motion to Alter or Amend the Court’s March 31, 2015, Order under Fed.R.Civ.P. 59(e), which held that Petitioner’s petition was timely filed, but that her ineffective assistance of plea counsel claims had no merit. Respondent moves the Court to alter or amend the portion of the Order holding that Petitioner’s petition was timely filed. Having carefully considered Respondent’s motion, Petitioner’s response, the record, and the applicable law, it is the judgment of-this Court that Respondent’s motion will be denied.

II. PROCEDURAL HISTORY

As is relevant for the disposition of this motion, Petitioner filed her petition for post-conviction relief (PCR) on August 19, 2005. On September 14, 2009, the PCR court filed its Order of Dismissal. Petitioner filed a motion under Rule 59(e) of the South Carolina Rules of Civil Procedure to alter or amend the PCR Court’s Order on September 25, 2009, which the PCR court denied on October 26, 2009.

Petitioner appealed the PCR court’s order. On July 20, 2012, the South Carolina Court of Appeals denied Petitioner’s petition, and then on September 21, 2012, it denied her petition for rehearing and rehearing en banc. The remittitur was issued on November 8, 2012.

On November 7, 2013, Petitioner filed her § 2254 petition with this Court, in which she raised four grounds of relief for alleged ineffective assistance of her plea counsel. Respondent filed his motion for summary judgment on April 4, '2014, arguing, among other things, that Petitioner had filed her petition after the statute of limitations had expired. Petitioner filed her response to the motion on July 21, 2014:

On January 29, 2015, the Magistrate Judge filed her Report and Recommendation (Report) agreeing with Respondent that Petitioner’s petition was untimely; but, even if the petition was timely, it was without merit. Petitioner filed her objections to the Report on March 16, 2015.

On March 31, 2015, this Court issued an Order holding that Petitioner filed her petition within the applicable statute of limitations, but that her ineffectiveness of assistance, of plea counsel claims were without merit. Respondent filed his Rule 59(e) motion on April 15, 2015, and Petitioner filed her response on May 4, 2015. Respondent’s motion is now ripe for review.

III. STANDARD OF REVIEW

Rule 59(e) of the Federal Rules of Civil Procedure “provides that a court may alter or amend the judgment if the movant shows either (1) an intervening change in the controlling law, (2) new evidence that was not available at trial, or (3) that there has been a clear error of law or a manifest injustice.” Robinson v. Wix Filtration Corp., LLC, 599 F.3d 403, 407 (4th Cir.2010). The Fourth Circuit “reviews the denial of a Rule 59(e) motion under the deferential abuse of discretion standard.” Id.

IV. CONTENTIONS OF THE PARTIES

In his Rule 59(e) motion Respondent argues that, in light of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) one year statute of limitations and the Supreme Court’s holding in Gonzalez v. Thaler, — U.S. -, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012), the Court erred in holding that Petitioner’s § 2254 petition was timely. Respondent’s Motion 1. He also states that “[t]he District Court concluded that the statute of limitations under 28 U.S.C. Section 2244(d) was tolled until the South Carolina Court of Appeals issued its remittitur on November 7, 2015. However, the decision of the Court of Appeals was final when the Court of Appeals denied the Petition for Rehearing o[n] September 21, 2015.” Id. Stated differently, according to Respondent, “the District Court erred in rejecting the Magistrate Judge’s recommendation that the date of the denial of the petition for rehearing rather than the remittitur letter date was the. operative date for the running of the statute of limitations.” Id. at 2.

In response, Petitioner avows that the Court’s interpretation of Gonzalez is correct. Petitioner’s Petitioner’s Response 1. But, in case the Court should decide that it erred in its initial decision, Petitioner avers that the doctrine of equitable tolling should apply. Id. at 2-4. Further, if the Court is inclined to adopt Respondent’s interpretation of Gonzalez and reject Petitioner’s request for equitable tolling, then Petitioner asks that the Court to grant to Petitioner a Certificate of Appealability so that her timeliness argument can be considered further by the Fourth Circuit. Id. at 4.

V. DISCUSSION

The law in regards to the whether Petitioner timely filed her '§ 2254 petition is governed by AEDPA, which states, in relevant part:

(d) (1) 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. The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

There is no dispute that the answer to whether Petitioner’s petition was timely filed is controlled by § 2244(d)(2), which “refers exclusively to State post-conviction or other state collateral review,” Lawrence v. Florida, 549 U.S. 327, 333, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (“Indeed, we [have] noted that the Courts of Appeals have uniformly interpreted direct review in § 2244(d)(1)(A) to encompass review of a state conviction by this Court. By contrast, § 2244(d)(2) refers exclusively to State post-conviction or other state collateral review, language not easily interpreted to include participation by a federal court.”) (internal citation omitted) (internal quotation marks omitted) (internal alteration omitted).

Respondent maintains that the Court has misread Gonzalez. The Court is unpersuaded.

First, in the second paragraph of Gonzalez, the Supreme Court opines that § 2244(d)(1)(A) “establishes a 1-year limitations period for state prisoners to file federal habeas petitions, running from ‘the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.’ We hold that, for a state prisoner who does not seek review in a State’s highest court, the judgment becomes ‘final’ on the date that the time for seeking such review expires.” Gonzalez, 132 S.Ct. at 646 (quoting § 2244(d)(1)(A)). The careful reader will note that this passage is concerned with when the judgment in a direct appeal becomes final, not when the judgment in a post conviction action becomes final. There is no mention whatsoever of the tolling provision applicable when a prisoner seeks “State post-conviction or other collateral review[,]” as provided by § 2244(d)(2).

Second, the Supreme Court states in Gonzalez that ^[tjhis case concerns ... ‘the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.’ § 2244(d)(1)(A). The question before us is when the judgment becomes ‘final’ if a petitioner does not appeal to a State’s highest court.” Id. at 652-583. Again, there is no mention of collateral review, only direct review.

And third, in the only direct reference that Gonzalez makes to § 2244(d)(2), it states that “Gonzalez also argues that Lawrence ... supports his focus on the state court’s issuance of the mandate because it referred to a mandate in determining when state postconviction proceedings were no longer pending. Lawrence, however, is inapposite. The case involved a different provision, 28 U.S.C. § 2244(d)(2), which by its terms refers to ‘State’ procedures.” Gonzalez, 132 S.Ct. at 654 n. 10. Once again, the Gonzalez Court emphasizes that its opinion concerns direct review (§ 2244(d)(1)(A), and not collateral review (§ 2244(d)(2)).

Thus, for these reasons, the Court rejects Respondent’s argument that Gonzalez has any bearing on the outcome of this case.

Respondent also inexplicably asserts that the Court erred in holding that the statute of limitations was tolled under § 2244(d)(2) until the South Carolina Court of Appeals issued its remittitur. Motion 1. The Court held no such thing. Respondent has somehow misapprehended the Court’s decision.

As noted above, § 2244(d)(2) states that “the time during which a properly filed application for State post-conviction or other collateral • review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” Id. “The Fourth Circuit has construed a state post-conviction proceeding to include all state-court proceedings from initial filing in the trial court to final disposition by the highest state court.” Beatty v. Rawski, Civil Action No. 1:13-3045-MGL-SVH, 2015 WL 1518083 at =:=3 (D.S.C. March 31, 2015) (quoting Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir.2000)) (citations omitted) (internal quotation marks omitted) (alteration omitted).

In South Carolina, “the final disposition of an appeal does not occur until after the remittitur is filed in the circuit court[.]” Id. at *4 See Harleysville Mut. Ins. Co. v. State, 401 S.C. 15, 23 n. 2, 736 S.E.2d 651, 655 n. 2 (2012) (“An opinion of an appellate court is not final until the remittitur is filed in the lower court”); Brackenbrook North Charleston, LP v. Cnty. of Charleston, 366 S.C. 503, 508, 623 S.E.2d 91, 93 (2005) (“Where there has been an appeal, ‘final disposition of the case’ occurs when the remittitur is filed in the circuit court.”) (quoting McDowell v. S.C. Dep’t of Soc. Serv., 300 S.C. 24, 26, 386 S.E.2d 280, 282 (1989)); Christy v. Christy, 317 S.C. 145, 151, 452 S.E.2d 1, 4 (1994) (“The final disposition of a case occurs when the remittitur is returned by the clerk of the appellate court and filed in the lower court. Until that time, the case is pending on appeal.”) (citation omitted)).

Hence, the final disposition of Petitioner’s PCR did not occur until the remittitur was filed in the state circuit court. “Until that time, the case [was still] pending on appeal.” Id. Here, the remittitur was not filed until on or after November 8, 2012, the date that the remittitur was issued. It follows then that Petitioner’s “properly filed application for State post-conviction or other [State] collateral review with respect to the pertinent judgment or claim,” § 2244(d)(2), was still pending on or after November 8, 2012, when the remittitur was filed in the state circuit court. Inasmuch as Petitioner filed her § 2254 action on November 7, 2013, her habeas petition was not time barred by the AEDPA one-year statute of limitation.

In light of the foregoing discussion, the Court need not address Petitioner’s arguments.

Although neither argued in Respondent’s Rule 59(e) motion nor discussed in the Report, to the extent that Respondent wishes to rely on the language in Crawley v. Catoe, 257 F.3d 395 (4th Cir.2001) for the proposition that a petition is no longer pending after “the South Carolina Supreme Court denie[s] [a petitioner’s] request for rehearing[,]” id. at 398, such reliance is misplaced.

Crawley indeed states that “[the petitioner’s] application for state post-conviction relief was continuously pending before the South Carolina courts from before the April 24, 1996, effective date of the AED-PA until January 8, 1998, when the South Carolina Supreme Court denied [the petitioner’s] request for rehearing. The parties are in agreement that the one-year limitations period was tolled during this time period.” Id.

Yet, the issue in Crawley was not the same as the one before this Court. In Crawley, the question before the Court was whether the statute limitations was tolled under § 2244(d)(2) “for the period during which her petition was pending in the United States Supreme Court for writ of certiorari to review the South Carolina Supreme Court’s denial of her state habe-as corpus application.” Id. at 396. The Fourth Circuit held that it was not. Id. The question here, however, is when a state habeas petition is no longer pending in .'state court. Those are two distinctly different issues.

“[N]ot every aspect of each opinion has precedential force.” Getty Petroleum, Corp. v. Bartco Petroleum Corp., 858 F.2d 103, 113 (2d Cir.1988). As the Supreme Court held in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), “since we have never squarely addressed the issue, and have at most assumed the applicability of [it] on habeas, we are free to address the issue on the merits.” Id. at 631. “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925). And, that is exactly the situation that the Court is faced with here.

The question as to when a habeas petition was no longer pending in state court was not at issue in Craivley. As already noted, the parties had no disagreement on the matter. Instead, the Fourth Circuit accepted the parties agreement that “[the petitioner’s] application for state post-conviction relief was continuously pending before the South Carolina courts from before the April 24, 1996, effective date of the AEDPA until January 8, 1998, when the South Carolina Supreme Court denied [the petitioner’s] request for rehearing[,]” Crawley, 257 F.3d at 398, without any analysis whatsoever. Stated differently, the Fourth Circuit “never squarely addressed the issue,” Brecht, 507 U.S. at 631. The issue that the Court is confronted with here was “neither brought to the attention of the [Fourth Circuit] nor ruled upon[.]” Webster, 266 U.S. at 511.

The Court notes that, according to Westlaw, Crawley has been cited just twice in other opinions since it was published in 2001: Abela v. Martin, 348 F.3d 164, 172-73 (6th Cir.2003) (holding, contrary to Crawley, that “the statute of limitations is tolled from the filing of an application for state post-conviction or other collateral relief until the conclusion of the time for seeking Supreme Court review of the state’s final judgment on that application independent of whether the petitioner actually petitions the Supreme Court to review the case.”) (overruled by Lawrence, 549 U.S. at 334); Bell v. True, 356 F.Supp.2d 613, 615 (W.D.Va.2005) (“[W]hen the AEDPA limitations statute is unclear, it should be construed consistent with the statutory purpose of curbing the abuse of the statutory writ of habeas corpus.”) (quoting Crawley, 257 at 400) (citation omitted) (internal quotation marks omitted). Because neither of those cases are from South Carolina nor did either of them address the question as to when a South Carolina PCR action is no longer pending in the State’s highest court, it appears that no South Carolina magistrate judge or district court judge has thought that Crawley answers the question as to when the final disposition of a collateral proceeding is no longer pending under § 2244(d)(2) either.

Consequently, for all of these reasons, the Court is of the opinion that Crawley is of no precedential value as to the question of when a state habeas petition in South Carolina is no longer pending in the state’s highest court.

Finally, though not altogether clear, it appears that Respondent suggests that the. Court may have erred in entering its March 31, 2015, Order before allowing Respondent to file his reply to Petitioner’s objections. See Respondent’s Motion 4, n.l. But, Respondent fails to give any hint as to what arguments he would have made in a reply to Petitioner’s objections or to assert that he was prejudiced in any way. And besides, how could he? The Court has fully addressed each of Respondent’s arguments in detail in this Order. Therefore, to the extent that Respondent contends that the Court erred in filing its March 31, 2015, Order before Respondent was given the opportunity to file a reply to Petitioner’s objections, the Court holds that any such alleged error was harmless.

VI. CONCLUSION

For the foregoing reasons, Respondents Rule 59(e) motion is DENIED.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

SHTVA V. HODGES, United States Magistrate Judge.

Petitioner Gena Beatty is an inmate at the Leath Correctional Institution of the South Carolina Department of Corrections. She filed this petition for a writ of habeas corpus through counsel, Tara D. Shurling, Esq., 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 motion for summary judgment and return filed on April 4, 2014. [ECF Nos. 18, 19]. After . obtaining three extensions, Petitioner filed a response on July 21, 2014. [ECF No. 26]. The motion having been fully briefed, it is ripe 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.

I. Factual and Procedural Background

Petitioner was indicted by the Lexington County grand jury during the February 2003 term of court for felony DUI resulting in death (2003-GS-32-848) [ECF No. 19-2 at 64-65], multiple counts of felony DUI resulting in great bodily injury (2003-GS-32-849, 850, 851 [ECF No. 19-2 at 66-67], and 852), leaving the scene of an accident involving death (2003-GS-32-1940), and filing a false police report after a felony (2003-GS-32-1146).

Petitioner was originally represented, by Jack Swerling, Esq., who was relieved, and then by Cameron B. Littlejohn, Esq. On August 13, 2004, Petitioner pled guilty to all the charges before the Honorable Mark Hayes II, Circuit Court Judge. [ECF No. 19-1 at 3-35]. Judge Hayes sentenced Petitioner to concurrent terms totaling 25 years. [ECF No. 19-1 at 34-35]. Petitioner’s counsel filed a timely motion for reconsideration on August 23, 2004. [ECF No. 19-1 at 37-39]. Judge Hayes heard the motion at a hearing on March 13, 2006, and affirmed the original sentence. [ECF No. 19-1 at 40-56], Judge Hayes entered an order denying the motion for reconsideration on March 15, 2006. [ECF No. 19-1 at 57], Petitioner did not appeal her guilty pleas or sentences.

■On August 19, 2005, Petitioner filed an application for post-conviction relief (“PCR”), alleging ineffective assistance of counsel and abuse of discretion by the trial judge [ECF No. 19-1 át 58-66], as amended May 6, 2009, to include a claim of involuntary guilty plea, id. at 72-74. A PCR evidentiary hearing was held before the Honorable Roger M. Young, Sr., Circuit Court Judge, on May 19, 2009, at which Petitioner and her counsel, Trida Blanchette, Esq., appeared. [ECF No. 19-1 at 75-147]. On September 14, 2009, Judge Young filed an order of dismissal and judgment. [ECF No. 19-1 at 148-162],

On September 25, 2009, Petitioner’s PCR counsel filed • a Rule 59 motion to alter or amend [ECF No. 19-1 at 163-167], which was denied by order dated October 26, 2009 [id. at 168].

Petitioner filed a notice of appeal from the denial of PCR and was initially represented by Deputy Chief Appellate Defender Wanda H. Carter, Esq., of the South Carolina Commission on Indigent Defense, Division of Appellate Defense. On or about May 5, 2010, Ms. Carter filed a -Johnson petition for writ of certiorari [ECF No. 19-3] in the South Carolina Supreme Court raising the following issue: “Trial counsel erred in failing to fully investigate into and develop a mental illness defense in the case because but for counsel’s omission, petitioner would have opted to be tried by jury instead of pleading guilty as charged.” Id. at 3. Ms. Carter noted that the appeal was without merit and petitioned to be relieved as counsel. Id. at 9.

On September 24, 2010, Petitioner filed a motion to substitute Ms. Blanchette as her collateral appellate counsel and to substitute her petition for writ of certiorari, which the court granted on October 8, 2010. [ECF No. 19^1]. In her merits brief filed on January 5, 2011, Petitioner raised the following issue to the South Carolina Supreme Court: “The Lower Court Erred in Finding that Plea Counsel’s Performance Was Not Ineffective and Prejudicial to the Petitioner Thus Rendering Her Plea Involuntary When There Was No Evidence of Probative Value to Support Such a Finding.” [ECF No. 19-5 at 3]. The appeal was transferred to the Court of Appeals, which denied the petition on July 20, 2012. [ECF No. 19-7]. On September 21, 2012, the court denied Petitioner’s Petition for Rehearing and Petition for Rehearing En Banc. [ECF Nos. 19-8, 19-9, 19-10]. The remittitur was issued on November 8, 2012. [ECF No. 19-11].

Petitioner filed this federal petition for a writ of habeas corpus on November 7, 2013, through counsel. [ECF No. 1].

II. Discussion

A. Federal Habeas Issues

Petitioner states the following grounds in her habeas petition:

Ground One: Plea counsel failed to provide the Petitioner effective assistance of counsel prior to and during her guilty pleas, in violation of her rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, in that he failed to prepare and investigate her case and specifically neglected to review the discovery material in Petitioner’s case with her and failed to discuss possible uses of some of the information contained therein to formulate potential defenses to her charges.

[ECF No. 1-1].

B. Standard for Summary Judgment

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.CivJP. 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[SJummary 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.

C. Analysis

1. AEDPA’s Statute of Limitations

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 her petition after the effective date of the AEDPA, review of her claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (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 one-year statute of limitations for filing habeas petitions. Subsection (d) of the statute provides:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

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 her conviction. Rule 203(b)(2), SCACR. Thus if a defendant does not file a direct appeal, her 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 her 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, 121 S.Ct. 361, 148 L.Ed.2d 213 (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, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (quoting Carey v. Saffold, 536 U.S. 214, 226, 122 S.Ct. 2134, 153 L.Ed.2d 260 (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, 644, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010); of. Pace v. DiGuglielmo, 544 U.S. at 418 n. 8, 125 S.Ct. 1807 (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 equitably 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, 130 S.Ct. at 2562 0quoting Pace, 544 U.S. at 418, 125 S.Ct. 1807).

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 her petition is timely or that she is entitled to the benefit of the doctrine of equitable tolling. Rouse v. Lee, 339 F.3d 238, 246 (4th Cir.2003).

2. Petitioner Did Not Timely File Her Federal Petition

The undersigned finds Petitioner did not timely file her 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 one-year 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 became final “when [her] time for seeking review with the State’s highest court expired.” Gonzalez v. Thaler, — U.S.-,-, 132 S.Ct. 641, 653-54, 181 L.Ed.2d 619 (2012) (clarifying the Court’s prior cases concerning 28 U.S.C. § 2244(d)(1)(A)).

Petitioner pled guilty and was sentenced on August 13, 2004. [ECF No. 19-1 at 34-35]. Petitioner filed a timely motion to reconsider, which was denied by order on March 15, 2006. [ECF No. 19-1 at 57]. Petitioner’s sentence became final ten days later, on March 25, 2006.

Petitioner’s filing of her PCR application on August 19, 2005, tolled the one-year limitations period. See 28 U.S.C. § 2244(d)(2). The statute of limitations remained tolled until the Court of Appeals denied her petition for rehearing and rehearing en banc on September 21, 2012. The statute of limitations resumed on September 22, 2012, and expired (the first business day) 365 days later, on September 22, 2013. Petitioner did not file her habeas action until November 7, 2013 — 46 days after the statute of limitations had run. Thus, Petitioner’s habeas petition is untimely under 28 U.S.C. § 2244(d).

The undersigned finds that the date of the Court of Appeal’s decision, and not the remittitur date, is appropriate. See Rule 242(c), SCACR (“A decision of the Court of Appeals is not final for purpose of review by the Supreme Court until the petition for rehearing or reinstatement has been acted on by the Court of Appeals”); Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir.2000) (explaining a state post-conviction action was no longer pending for purposes of § 2244(d)(2) once “the Maryland Court of Appeals denied Harris’ application for leave to appeal the denial of his petition”); Ham v. Padula, 2007 WL 2119862 *7 (D.S.C. July 17, 2007) (petitioner’s state court convictions became final when the state court of appeals dismissed the appeal at petitioner’s request (and sent the remittitur)); see Gonzalez v. Thaler, 565 U.S.-,-, 132 S.Ct. 641, 653-54, 181 L.Ed.2d 619 (2012) (“We now make clear ... [that] [t]he text of § 2244(d)(1)(A), which marks finality as of ‘the conclusion of direct review or the expiration of the time for seeking such review,’ consists of two prongs.... For petitioners who pursue direct review all the way to this Court, the judgment becomes final at the ‘conclusion of direct review’ — when this Court affirms a conviction on the merits or denies a petition for certiorari. For all other petitioners, the judgment becomes final at the ‘expiration of the time for seeking such review’ — when the time for pursuing direct review in this Court, or in state court, expires. We thus agree with the Court of Appeals that because Gonzalez did not appeal to the State’s highest court, his judgment became final when his time for seeking review with the State’s highest court expired”).

Petitioner is barred from federal habeas review unless she has demonstrated that she diligently has been pursuing her rights and that extraordinary circumstances prevented her timely filing, which could equitably toll the statute of limitations.

3. Petitioner Has Not Demonstrated Entitlement to Equitable Tolling

To benefit from the doctrine of equitable tolling, Petitioner must