Opinion
C/A No. 0:19-228-TMC-PJG
06-26-2019
Tequan L. Brown, Petitioner, v. Charles Williams, Respondent.
REPORT AND RECOMMENDATION
Petitioner Tequan L. Brown, a self-represented state prisoner, filed a 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) (D.S.C.) for a Report and Recommendation on Respondent's motion to dismiss. (ECF No. 15.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. (ECF No. 16.) Petitioner filed a response in opposition. (ECF No. 19.) Having carefully considered the parties' submissions, the court finds that Respondent's motion should be granted and the Petition be dismissed without prejudice.
In light of the court's recommendation, Petitioner's motion to amend the Petition and motion for an evidentiary hearing are denied. (ECF Nos. 13 & 21.)
In its motion to dismiss, Respondent argues that this case should be dismissed without prejudice because Petitioner's state post-conviction relief ("PCR") application is currently pending in state circuit court, and therefore, Petitioner has not yet exhausted his available state remedies. The court agrees.
A habeas corpus petitioner may obtain relief in federal court only after he has exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) ("Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.") (citing Rose v. Lundy, 455 U.S. 509, 515-16 (1999)). Thus, the exhaustion doctrine requires "that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845; see also Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) ("To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court."), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990) (holding that "when the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies."). To exhaust his available state court remedies, a petitioner must "fairly present[] to the state court both the operative facts and the controlling legal principles associated with each claim." Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks and citation omitted).
The record in this case shows Petitioner was convicted in the Colleton County Court of General Sessions of voluntary manslaughter, possession of a weapon during the commission of a violent crime, and obstruction of justice, and sentenced to an aggregate term of thirty years' imprisonment. (ECF No. 14-1 at 1, 668-69.) Petitioner's convictions and sentences were affirmed by the South Carolina Court of Appeals. (ECF No. 14-4.) On January 16, 2018, Petitioner filed a PCR application in the Colleton County Court of Common Pleas. (ECF No. 14-10.) More than one year later, on January 25, 2019, Petitioner filed this petition for a writ of habeas corpus. In the Petition, Petitioner claims that the South Carolina Attorney General never responded to his PCR application, he was never appointed counsel, and he never received a hearing. (Pet., ECF No. 1 at 5.)
Respondent submitted a return and the state court record in this case. In light of the procedural posture on a motion to dismiss, the court notes that neither party has disputed the accuracy of the record.
While Petitioner's PCR application remains pending, Petitioner has now been appointed counsel and the State has appeared in the matter and filed a return. Brown v. State of South Carolina, 2018-CP-15-00039. Thus, Petitioner has not exhausted his state court remedies, and the Petition should be dismissed.
Petitioner argues the court should excuse his failure to exhaust because Respondent is at fault for the delay in his PCR proceeding. See generally 28 U.S.C. § 2254(b); Ward v. Freeman, 46 F.3d 1129 (4th Cir. 1995) ("A petitioner need not present his claim to the state courts if state court remedies are ineffective to protective his rights. State remedies may be rendered ineffective by inordinate delay or inaction in state proceedings.") (internal citations omitted) (unpublished table decision); Hankins v. Fulcomer, 941 F.2d 246, 250 (3d Cir. 1991) ("Inordinate delay in state procedures is one circumstance that can render state process ineffective to protect a prisoner's rights and therefore excuse exhaustion."); Brooks v. Jones, 875 F.2d 30, 31 (2d Cir. 1989) ("[W]hen it is perfectly apparent . . . that a prisoner's requests to the state court and requests to state-appointed counsel have been to no avail, we have held that the prisoner need not take additional steps in the state court before he may be heard in the federal courts.").
Respondent alleges on "information and belief that there was some delay" in the Colleton County Court of Common Pleas's notifying Respondent that the PCR application was filed. (ECF No. 14 at n.3.) Respondent claims that the reason and length of the delay is unknown, but that it "immediately worked to remedy the dormancy of that PCR action upon its recognition." (Id.)
The court finds that the delay in processing Petitioner's PCR application is not sufficient cause to excuse the exhaustion requirement, especially in light of the fact that the he now has counsel in that matter and the Respondent has now appeared. Petitioner does not dispute Respondent's claim that the only impediment to the application's progress was the court's failure to provide notice to Respondent, which is now resolved. And while Petitioner's application has now been pending for over one year, that amount of time is not abnormal for a state PCR action. See Miller v. McFadden, C/A No. 1:14-483-RBH, 2015 WL 846530, at *2 (D.S.C. Feb. 26, 2015) (collecting cases that found inordinate delays in state post-conviction actions, the shortest delay being six years).
The court's finding is based on the facts currently before the court and without prejudice to Petitioner to raise this argument in the future should circumstances change.
Petitioner also argues that he will be prejudiced if the court dismisses this matter because Respondent will judge shop for a biased judge in state court. However, Petitioner fails to provide any basis upon which the court could conclude that he will not receive a fair and impartial hearing in his state PCR proceeding.
Further, Petitioner argues that if the court grants Respondent's motion, it should only grant the motion as to the unexhausted claims and proceed to consider the claims exhausted in Petitioner's direct appeal. But Petitioner's argument is based on Jones v. Bock, 549 U.S. 199 (2007), which deals with exhaustion of non-habeas claims brought under the Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996). Notably, in Jones, the Court rejected the argument that the "total exhaustion rule" for habeas petitions should apply to claims brought under the PLRA. Jones, 549 U.S. at 221-22. Indeed, where a § 2254 petition includes exhausted and unexhausted claims, the court must either dismiss the petition or stay the petition to allow the petitioner to exhaust his state remedies. See Rose, 455 U.S. at 522 (requiring dismissal of § 2254 habeas petitions that include both exhausted and unexhausted claims for relief); see also Rhines v. Weber, 544 U.S. 269, 273-79 (2005) (providing district courts should stay mixed § 2254 petitions in certain circumstances to protect the petitioner from running afoul of the statute of limitations). Here, as Respondent points out, Petitioner is not in danger of violating the statute of limitations to file a § 2254 habeas petition because the limitations period is currently tolled during the pendency of his PCR action. (ECF No. 14 at 10.) Accordingly, this Petition should be dismissed.
For the foregoing reasons, the court recommends Respondent's motion to dismiss be granted (ECF No. 15) and the Petition be dismissed without prejudice.
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE June 26, 2019
Columbia, South Carolina
The parties' attention is directed to the important notice on the next page.
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).