Opinion
C/A 4:24-3039-CMC-TER
06-05-2024
Alqi Dhimo, Petitioner, v. State of South Carolina, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is an action filed on a 28 U.S.C. § 2254 form. Pro se Petitioner is not in custody and Houston v. Lack, 487 U.S. 266 (1988) (prisoner's pleading was filed at the moment of delivery to prison authorities for forwarding to District Court) does not apply here. Petitioner paid the fee.
This court may only “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a)). Petitioner filed this action in person. According to public records of the South Carolina Department of Probation, Parole, and Pardon Services, Petitioner is not on probation or parole. Petitioner was sentenced to register as a sex offender and to eight years incarceration in January 2018 out of Horry County for attempted third degree criminal sexual conduct. (ECF No. 1). In the PCR application attached to the Petition, Petitioner stated “I am free” in March 2021. Petitioner's request for relief is “I want be grand for my innocent and truth I am not guilty State S.C. failed to proved evidence the truth.” (ECF No. 1 at 15)(errors in original). Petitioner is simply not in custody pursuant to the state court judgment as required by § 2254(a) and this action is recommended to be summarily dismissed without prejudice.
Petitioner makes no argument regarding his ongoing sex offender registry requirement; the court addresses this sua sponte for the benefit of the district court. Registration requirements imposed on sex offenders do not place the offender “in custody” for purposes of habeas jurisdiction. Wilson v. Flaherty, 689 F.3d 332, 337-338 (4th Cir. 2012); Smith v. Bush, No.8:17-cv-2775-MGL-JDA, 2017 WL 5900088, at *3 (D.S.C. Nov. 13, 2017), report and recommendation adopted, 2017 WL 5889247 (D.S.C. Nov. 29, 2017)(summary dismissal of habeas because not in custody from sex offender registry requirement).
Petitioner's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The petitioner is advised that he may file specific written objections to this Report and Recommendation with the District Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In the absence of a timely filed objection, a district court judge 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 & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005).
Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed.R.Civ.P. 6(a) & (e). Filing by mail pursuant to Fed.R.Civ.P. 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in the waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); and Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).