Derek Maner v. Warden of Kershaw Correctional Institution
Civil Action No. 8:24-cv-02626-TMC
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION
September 22, 2025
Timothy M. Cain, United States District Judge
Pеtitioner Derek Maner (“Petitioner“), a state prisoner proceeding pro se, filed this Petition for a Writ of Habeas Corpus (“Petition“) pursuant to
Now before the court is the magistrate judge‘s Report and Recommendation (“Report“) recommending the court grant Respondent‘s motion for summary judgment and deny the Petition. (ECF No. 33). Petitioner filed objections to the Report, (ECF No. 43), and Respondent filed a reply, (ECF No. 45). This matter is now ripe for review.
I. Legal Standards
A. Review of the Magistrate Judge‘s Report
Additionally, since Petitioner is proceeding pro se, this court is charged with construing his filings liberally in order to allow for the development of potentially meritorious arguments and claims. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017) (noting that “when confronted with the objection of a pro se litigant, [the court] must also be mindful of [its] responsibility to construe pro se filings liberally“). Accordingly, “when
B. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a mаtter of law.”
“‘In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities in favor of the nonmoving party.‘” Sellers v. Keller Unlimited LLC, 388 F. Supp. 3d 646, 649 (D.S.C. 2019) (quoting HealthSouth Rehab. Hosp. v. Am. Nat‘l Red Cross, 101 F.3d 1005, 1008 (4th Cir. 1996)). However, “‘[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be countеd.‘” McKinney v. G4S Gov‘t Sols., Inc., 711 Fed. App‘x 130, 134 (4th Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party has the burden of proving that summary judgment is appropriate. Bd. of Trs., Sheet Metal Workers’ Nat‘l Pension Fund v. Lane & Roderick, Inc., 736 Fed. App‘x 400, 400 (4th Cir. 2018) (citing Celotex Corp., 477 U.S. at 322–23). Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See
II. Factual Background
The magistrate judge issued a thorough and well-reasoned Report, recommending that this court grant Rеspondent‘s motion for summary judgment and deny the Petition. (ECF No. 33). The Report sets forth in detail the relevant facts and standards of law, and the court incorporates the same with only a synopsis of the relevant factual background here.
On February 12, 2009, following a trial in state court, a jury found Petitioner guilty of one count of murder. (ECF No. 20-2 at 338). The Honorable Michael G. Nettles sentenced Petitioner to life imprisonment. Id. Petitioner filed a direct appeal, and the South Carolina Court of Appeals affirmed his conviction and sentence on October 10, 2012, and issued a remittitur on October 26, 2012. Id. at 339–340; (ECF No. 20-5 at 1). On September 12, 2013, Petitioner filed his first application for postconviction relief (“PCR“) in the Allendale County Court of Common Pleas. (ECF No. 20-2 at 341–47).
In February of 2019, Petitioner, represented by counsel, filed a belated notice of appeal of the PCR Order in the South Carolina Court of Appeals. (ECF No. 20-6). Petitioner raised the following two issues for belated review:
- Did the PCR judge err in refusing to find trial counsel ineffective for not objecting to testimony from an officer that, fifteen months after the disappearance of Ericka Bradley, he stopped Petitioner‘s
brother for a tag violation and noticed that the car was missing a backseat and the trunk would not open when there was no link between the brother‘s car and the disappearance making the testimony irrelevant.
2. Did the PCR judge err in refusing to find trial counsel ineffective for not objecting to testimony about purported hidden jewelry when there was no connection betwеen the jewelry and the disappearance of Ericka Bradley, making the testimony irrelevant?
(ECF No. 20-8 at 3).
The belated appeal was transferred to the South Carolina Court of Appeals, (ECF No. 20-10), and on February 28, 2024, that court issued an unpublished opinion affirming the PCR Order. (ECF No. 20-14). Remittitur was issued on March 19, 2024. (ECF No. 20-15).
This Petition followed on April 29, 2024. (ECF No. 1). In the Petition, Petitioner argues the following:
Ground One:
Judge erred in refus[]ing to find trial counsel ineffective for not objecting to testimony from; at that time; Detective James Denny Dean H. Hutto. Fifteen months after the disappearance of Erica Bradley, he stopped Petitioner‘s brother for a tag violation and noticed that the car was missing a backseat, the trunk would not open and that the car was crushed before trial when there was no link between the brother‘s car and the disappearance, making the testimony irrelevant.
. . .
Ground Two:
The Judge erred in refusing to find trial counsel ineffective for not objecting to testimony about purported hidden jewelry. There was no connection between the jewelry and the disappearance of Erica Bradley, making the testimony irrelevant.
. . .
Ground Three:
Failure to have expert testimony of Dr. Ward held in camera and failure to object to this testimony. His testimony was outside his area of expertise.
. . .
Ground Four:
Failure to object to Investigator Silvaggio‘s testimony on the basis it was victimology. School records and reported work conduct proves testimony wаs bias, prejudicial and irrelevant.
(ECF No. 1 at 5, 7, 8, and 10).
Respondent filed a motion for summary judgment, (ECF No. 21), and a return and memorandum, (ECF No. 20). Petitioner filed a response in opposition to Respondent‘s motion, (ECF No. 30), and Respondent filed a reply, (ECF No. 32).
In the Report, the magistrate judge recommended that this court grant Respondent‘s motion for summary judgment because (1) the Petition is time barred, and equitable tolling does not apply; (2) Grounds Three and Four are procedurally defaulted; and (3) аll grounds fail on the merits. (ECF No. 33).
III. Discussion
A. Timeliness of Petition
Since Petitioner filed this petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“), review of his claim is governed by
“The time during which a properly filed application for State post-conviction or other collaterаl review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”
In his response in opposition to Respondent‘s motion for summary judgment, Petitioner conceded that 322 days lapsed before he filed his first PCR action, so he “still had 43 days of time left on the one-year period for timely filing.” (ECF No. 30 at 4).
In seeking summary judgment, Respondent argued the entire action should be dismissed as untimely under the one-year statute of limitations. (ECF No. 20 at 14–17). The magistrate judge construed Petitioner‘s argument in opposition to summary judgment as “asserting that (1) the entire period from when he filed his first PCR application on September 12, 2013, until the South Carolina Court of Appeals issued its decision on thе belated appeal on February 28, 2024, tolled the statute of limitations; and (2) even if that entire period of time was not subject to statutory tolling, Petitioner is entitled to equitable tolling.” (ECF No. 33 at 16). Petitioner did not object to this construction of his arguments, and this court agrees with the construction.
The magistrate judge, cited to numerous cases in this district, and found “Petitioner‘s second PCR action and the grant of a belated appeal under Austin v. State did not toll the statute of limitations for the period between the conclusion of his first PCR action and the filing of his second PCR action.” (ECF No. 33 at 16–17). In McHoney v. South Carolina, 518 F. Supp. 2d 700 (D.S.C. 2007), the court found “the fact that the state court allowed a belated [Austin] appeal does not make the notice of appeal ‘timely.‘” The court found that “[a]fter the time in which to appeal lapsed, [the petitioner‘s] application for further appellate review ceased to be ‘pending’ for purposes of calculating the tоlling of the federal limitations period.” Id. As such, the court concluded “the AEDPA‘s limitations period was not tolled during this time[.]” Id.
Next, the magistrate judge liberally construed as an argument for equitable tolling Petitioner‘s argument that the delay in filing the Petition was caused by PCR counsel‘s failure to file a timely appeal the PCR Order. (ECF No. 33 at 17). Petitioner does not object to that construction, and this court agrees.
The United States Supreme Court has “made clear that a petitioner is entitled to equitable tolling only if he 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 v. Florida, 560 U.S. 631, 649 (2010) (internal quotations omitted). “[A]ny resort to equity must be reserved for those rare instances where—due to circumstances external to the party‘s own conduct—it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Harris, 209 F.3d at 330.
The magistrate judge found equitable tolling did not apply because Petitioner has not shown extraordinary circumstances or thаt he diligently pursued his rights. (ECF No. 33 at 17–20). In his objections, Petitioner argues that “the correct standard requires Equitable Tolling and Excusable Neglect because extraordinary circumstances were beyond petitioner[‘]s control . . . Respondent should not benefit from the procedural failure, especially since that failure was due to a mistake by the court . . . [and] the interests of justice should outweigh strict adherence to the deadlines.” (ECF No. 43 at 9). However, the magistrate judge applied the applicable authorities regarding equitable tolling to the facts of this case and found Petitioner‘s equitable tolling arguments to be meritless. See (ECF No. 33 at 17–20). The court agrees with the magistrate judge‘s conclusion.
At the latest, PCR counsel was aware of the PCR Order on December 6, 2017. (ECF No. 20-2 at 473). However, the second PCR application was not filed until August 2018, well past the 43 days Petitioner had remaining before the one-year statute of limitations passed. Cоurts have consistently found that an attorney‘s failures generally do not constitute extraordinary circumstances. See Delane, 2025 WL 2218296 at *5 (collecting cases); see also e.g., Harris, 209 F.3d at 330–31 (concluding a mistake by counsel regarding calculation of limitations period did not warrant equitable tolling); Fisher v. Johnson, 174 F.3d 710, 714–15 (5th Cir. 1999) (refusing to toll limitation where access to legal materials that would have given notice of the limitations period was delayed). Furthermore, Petitioner has not shown that he has diligently pursued his
B. Procedural Bar
“[F]ailure to appeal claims disposed of by state habeas trial court constitutes a procedural bar to further federal review of such claims.” Whitley v. Bair, 802 F.2d 1487, 1500 (4th Cir. 1986). The magistrate judge found that Grounds Three and Four are procedurally defaulted, noting that although Petitioner raised these grounds in his first PCR application, the PCR Order denied relief, and Petitioner did not appeal that decision as to Grounds Three and Four in the state appellate court. (ECF Nos. 33 at 20–22; 20-2 at 454–55, 461; 20-8 at 3; 1 at 9–11). The magistrate judge found “Petitioner has not shown, much less argued, sufficient cause and actual prejudice to excuse his procedural default.” (ECF No. 33 at 21). Petitioner did not object to the magistrate judge‘s findings. Finding no clear error, the court agrees with and adopts the magistrate judge‘s findings and recommendation that Grounds Three and Four were procedurally defaulted.
C. Merits
Out of an abundance of caution, the magistrate judge addressed the merits of all four grounds and found Respondent is entitled to summary judgment. (ECF No. 33 at 22–31). As
The magistrate judge correctly discussed the applicable law. In short, to obtain habeas relief under AEDPA, a petitioner must show that the PCR court‘s ruling
(1) resulted in a decision that was contrary to, or involved аn unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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.
“[T]o grant [a] habeas petition, [the court] must conclude that the state court‘s adjudication of [the petitioner‘s] claims was not only incorrect, but that it was оbjectively unreasonable.” McHone v. Polk, 392 F.3d 691, 719 (4th Cir. 2004). Additionally, the factual findings of the state court are entitled to deference and are “presumed to be correct” unless Petitioner rebuts that presumption by clear and convincing evidence.
In Ground One, Petitioner argues the PCR judge erred in refusing to find trial counsel was ineffective for not objecting to testimony related to Petitioner‘s brother‘s vehicle. (ECF No. 1 at 5). As to Ground One, the magistrate judge found as follows:
Petitioner argues that “allowing this inadmissible testimony in[to evidence] undermined the facts[ of] Petitioner‘s innocence and allowed a picture to [be] drawn of something that never took place.” ECF No. 30 at 4. Petitioner supports this assertion with a summary of his view of the evidence presented at trial. Id. However, Petitioner provides no argument regarding the reasonableness of the PCR Court‘s or the South Carolina Court of Appeal‘s application of
law to the facts and evidence of the case under the Strickland2 standard.
Respondent argues the South Cаrolian Court of Appeal‘s adjudication of Ground One was reasonable in the application of law to the facts of the case and was correctly guided by the established test for ineffective assistance claim under Strickland. ECF No. 20 at 18. The [magistrate judge] agrees.
(ECF No. 33 at 22).
The magistrate judge thoroughly addressed the findings of both the PCR Court and the South Carolina Court of Appeals in making his findings. (ECF No. 33 at 23–25). In his objection to the magistrate judge‘s findings, Petitioner again restates his view of the evidence presented at trial and rеpeats his argument that the testimony was irrelevant, biased, and prejudicial. (ECF No. 43 at 6–7). However, Petitioner does not address the magistrate judge‘s determination that the South Carolina Court of Appeal‘s adjudication of Ground One was reasonable. As such, finding no error, clear or otherwise, the court overrules Petitioner‘s objection and finds Respondent is entitled to summary judgment as to Ground One. See Valentino v. Clarke, 972 F.3d 560, 580 (4th Cir. 2020) (noting “the question is not whether a federal court believes the statе court‘s determination under the Strickland standard was incorrect, but whether that determination was unreasonable—a substantially higher threshold.“) (internal quotations omitted).
As to Ground Two, Petitioner argues the PCR judge erred in refusing to find trial counsel ineffective for not objecting to testimony about purported hidden jewelry. (ECF No. 1 at 7). The magistrate judge found as follows:
In his Response in Opposition to the Motion for Summary Judgment, Petitioner argues ‘[t]his ground was turned down for the same reason as ground onе. . . .ECF No. 30 at 5. Petitioner again
attempts to support this assertion with a summary of his own view of the evidence presented at trial. Id. Like before, Petitioner provides no argument regarding the reasonableness of the South Carolina Court of Appeal‘s application of law to the facts of the case under the Strickland standard.
Respondent argues the South Carolina Court of Appeal‘s adjudication of Ground Two, as with Ground One, was reasonable in application of law to the facts of the case and was correctly guided by the established test for the ineffective assistance claims under Strickland. ECF No. 20 at 20. Respondent contends that Petitioner failed to show a reasonable probability that, but for trial counsel‘s performance in failing to object to the testimony concerning the jewelry, the result of the trial would have been different. Id. The [magistrate judge] agrees.
(ECF No. 33 at 25–26). Again, the magistrate judge thoroughly addressed the findings of the PCR Court and of the South Carolinа Court of Appeals in making its determination. (ECF No. 33 at 25–28). In his objections to the magistrate judge‘s findings, Petitioner again restates his view of the evidence presented at trial and repeats his argument that the testimony misled and misinformed the jury and was biased, irrelevant, and prejudicial. (ECF No. 43 at 7). However, like in his objection to Ground One, Petitioner does not object to the magistrate judge‘s conclusion that the South Carolina Court of Appeals’ adjudication of Ground Two was reаsonable. See Valentino v., 972 F.3d at 580 As such, finding no error, clear or otherwise, the court overrules Petitioner‘s objection and finds Respondent is entitled to summary judgment as to Ground Two.
IV. Conclusion
Having thoroughly reviewed the Report and record under the appropriate standards, the court ADOPTS the Report in part and respectfully declines to adopt the Report in part,3 (ECF No.
A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.”
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
September 22, 2025