Lester v. South Carolina

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STEVEN LESTER, 
Petitioner-Appellant,
v.
STATE OF SOUTH CAROLINA; CHARLES  No. 02-7382
M. CONDON, Attorney General of
the State of South Carolina,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, District Judge.
(CA-99-3122-4-12BF)
Submitted: October 31, 2002
Decided: February 7, 2003
Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Steven Lester, Appellant Pro Se. Donald John Zelenka, Chief Deputy
Attorney General, Samuel Creighton Waters, OFFICE OF THE
ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South
Carolina, for Appellees.
2 LESTER v. STATE OF SOUTH CAROLINA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Steven Lester seeks to appeal the district court’s order denying
relief on his petition filed under 28 U.S.C. § 2254 (2000). An appeal
may not be taken to this court in a habeas corpus proceeding unless
a circuit justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1) (2000). When, as here, a district court dismisses
a § 2254 petition solely on procedural grounds, a certificate of
appealability will not issue unless the petitioner can demonstrate both
"(1) ‘that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right,’ and (2)
‘that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.’" Rose v. Lee, 252 F.3d 676,
684 (4th Cir.) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)),
cert. denied, __ U.S. __, 122 S. Ct. 318 (2001). We have reviewed
the record and, for the reasons stated below, conclude that Lester has
not made the requisite showing.
In March 1975, Lester pled guilty in South Carolina state court to
murder and armed robbery, for which he received consecutive fifteen
year prison terms on the armed robbery counts and life in prison on
the murder count. Lester did not file a direct appeal. His first state
application for post-conviction relief was denied in June 1983. On
July 5, 1995, Lester filed a second state application for post-
conviction relief, which was denied on June 9, 1997. His third appli-
cation, filed in March 1998, was dismissed on March 22, 1999.
On September 23, 1999, Lester filed a federal habeas corpus peti-
tion pursuant to 28 U.S.C. § 2254. Lester dated the petition August
10, 1999. The magistrate judge recommended granting Respondents’
motion for summary judgment on the grounds that the petition was
untimely filed, procedurally barred, and meritless. The district court
did not expressly adopt the magistrate judge’s recommendation, but
LESTER v. STATE OF SOUTH CAROLINA 3
concluded that Lester’s § 2254 petition was untimely and therefore
granted Respondents’ motion for summary judgment.
Under this circuit’s local rules, this court "limit[s] its review to the
issues raised in the informal brief." 4th Cir. R. 34(b). The court
expressly warned Lester that it would not consider issues not specifi-
cally raised in his informal brief. Despite this warning, Lester failed
to challenge in his informal brief the district court’s conclusion that
his § 2254 petition was untimely, and instead argued the merits of his
petition. Therefore, he waived the issue of timeliness and cannot meet
the criteria for a certificate of appealability.
Even if he had not waived the timeliness issue, we find that Les-
ter’s habeas petition was time barred. Under 28 U.S.C. § 2244(d)(1)
(2000), a one-year limitations period applies to the filing of § 2254
petitions. The statutory period is tolled during the pendency of any
properly filed state collateral review proceedings. 28 U.S.C.
§ 2244(d)(2); Artuz v. Bennett, 531 U.S. 4, 8-9 (2000). Because Les-
ter’s convictions became final before the enactment of the Anti-
Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-
132, 110 Stat. 1214 (1996) ("AEDPA"), the one-year limitations
period commenced on April 24, 1996. Harris v. Hutchinson, 209 F.3d
325, 327-28 (4th Cir. 2000).
At the time the limitations period began to run, Lester had an appli-
cation for post-conviction relief pending in state court. That petition
was denied on June 9, 1997. Under the AEDPA, "the limitations
period is tolled from the time an application for state post-conviction
relief is initially filed until it is finally disposed of by the state courts,
including times between denials of claims and appeals." Spencer v.
Sutton, 239 F.3d 626, 629 (4th Cir. 2001) (citing Hernandez v. Cald-
well, 225 F.3d 435, 438 (4th Cir. 2000)). This Court has stated 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 from the limitations period for
federal habeas corpus petitioners who were already involved
in state post-conviction proceedings on April 24, 1996.
4 LESTER v. STATE OF SOUTH CAROLINA
Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999) (emphasis added);
see also Carey v. Saffold, __ U.S. __, 122 S. Ct. 2134, 2136, 2138
(2002). Neither the Supreme Court nor this court has specifically
addressed the issue of whether the time for filing an appeal of the
denial of post-conviction relief is counted in the tolling period when
no notice of appeal is filed. In this case it makes no difference
because, even if the period is included, Lester’s § 2254 petition was
untimely.
As stated above, Lester’s second state post-conviction application
was pending when the AEDPA’s limitations period began running on
April 24, 1996. The state court denied the application on June 9,
1997, and, under South Carolina’s procedural rules, Lester had thirty
days to appeal. See S.C.R. Civ. P. 71.1(f); S.C. App. Ct. R. 203(b),
227(b). Therefore, if the appeal period is included in the tolling, Les-
ter’s application for post-conviction relief was pending, and the
AEDPA’s statute of limitations did not begin to run, until July 9,
1997. Lester’s third state application for post-conviction relief was
filed on March 27, 1998, and dismissed on March 22, 1999. Thus, the
AEDPA limitations period also was tolled beginning on March 27,
1998. The period was tolled, at the latest, until April 21, 1999, the
date the time expired for Lester to appeal from the March 22, 1999,
order dismissing his third application.
Counting the 260 days between Lester’s second and third applica-
tions for post-conviction relief, and resuming the running of the limi-
tations period on April 22, 1999, Lester had 105 days, or until August
4, 1999, to file his federal habeas petition. However, Lester did not
file his § 2254 petition until, at the earliest, August 10, 1999.*
Because Lester’s § 2254 petition was untimely, Lester cannot meet
the criteria for obtaining a certificate of appealability.
*We note that Lester’s third state application for post-conviction relief
was dated March 24, 1998, although it was not filed until March 27,
1998. Even if we considered the application to be filed as of March 24,
1998, the additional three days of tolling would have given Lester until
Monday, August 9, 1999, at the latest, to file his § 2254 petition. Thus,
his petition still would be untimely.
LESTER v. STATE OF SOUTH CAROLINA 5
As part of its analysis, the district court discussed Rule 9(b) of the
Rules Governing § 2254 Cases. This rule addresses second or succes-
sive § 2254 petitions. The district court appears to have discussed this
rule in relation to Lester’s multiple state habeas corpus petitions. We
note that Rule 9(b) is inapplicable to Lester’s case because the rule
concerns second or successive federal § 2254 petitions, rather than
state post-conviction petitions, and this was Lester’s first § 2254 peti-
tion. In any event, Lester waived this issue by failing to raise it in his
informal brief and, as discussed above, Lester’s petition was
untimely.
For these reasons, we deny a certificate of appealability and dis-
miss Lester’s appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
DISMISSED