Opinion
C/A 0:22-1951-MGL-PJG
08-17-2022
Alton Adams, Petitioner, v. SC Dept. of Probation Pardon, Parole, Respondent.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
Petitioner Alton Adams, a self-represented litigant, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.). Having reviewed the Petition in accordance with applicable law, the court concludes that it should be summarily dismissed for failure to exhaust state remedies.
I. Factual and Procedural Background
In 2019, Petitioner pled guilty in the Saluda County Court of General Sessions to first-degree assault and battery and was sentenced to sixteen years' imprisonment suspended to five years' probation after four years' imprisonment. Petitioner is currently not incarcerated and is still subject to probation. According to the South Carolina Public Index, Petitioner did not collaterally attack his conviction or sentence by filing an appeal or an application for post-conviction relief. Petitioner now files this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 raising numerous constitutional claims related to his prosecution for first-degree assault and battery. Petitioner asks the court to vacate his sentence because he has no effective state remedy.
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case pursuant to the Rules Governing § 2254 Cases, 28 U.S.C. § 2254; the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104132, 110 Stat. 1214; and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
This court is required to liberally construe pro se petitions, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
B. Analysis
Generally, district courts must dismiss petitions that have unexhausted claims. Rose v. Lundy, 455 U.S. 509, 515 (1982). Though exhaustion is not jurisdictional, Jenkins v. Fitzberger, 440 F.2d 1188, 1189 (4th Cir. 1971); the doctrine is strictly enforced, Thomas v. Eagleton, 693 F.Supp.2d 522, 538 (D.S.C. 2010). Thus, the court should sua sponte summarily dismiss totally unexhausted petitions. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to the petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust.”); Kreis v. Lewis, C/A No. 0:18-750-TLW-PJG, 2018 WL 3737911, at *2 (D.S.C. Mar. 30, 2018) (summarily dismissing an § 2254 petition while state PCR action was still pending), report and recommendation adopted, 2018 WL 3729749 (D.S.C. Aug. 6, 2018); see also Gaines v. Warden, Lee Corr. Inst., C/A No. 4:22-239-MBS-TER, 2022 WL 707158, at *2 (D.S.C. Feb. 3, 2022) (summarily dismissing § 2254 petition where state PCR action was pending and collecting cases in support), report and recommendation adopted, 2022 WL 706860 (D.S.C. Mar. 9, 2022). Here, Petitioner asserts there is no effective state remedy, but he fails to explain why South Carolina's remedies, including direct appeal and post-conviction relief actions, are not effective. Notably, Petitioner has not yet attempted to collaterally attack his conviction or sentence. Therefore, this action should be summarily dismissed for failure to exhaust state remedies.
III. Conclusion
Accordingly, the court recommends that the instant petition for writ of habeas corpus be dismissed without prejudice and without requiring the Respondent to file a return.
The Petitioner is directed to the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
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).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street Columbia, South Carolina 29201
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 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).