Opinion
C. A. 8:20-cv-00126-SAL-JDA
01-15-2020
Terron Gerhard Dizzley, Petitioner, v. Warden Stephon, Respondent.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
Terron Gerhard Dizzley (“Petitioner”), proceeding pro se, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Petitioner is a prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and is incarcerated at the Broad River Correctional Institution. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Judge. For the reasons that follow, the Petition is subject to summary dismissal.
BACKGROUND
Petitioner was sentenced in the Georgetown County Court of General Sessions on April 3, 2014, after a jury convicted him of the crimes of murder and possession of a weapon during a violent crime at case number 2009-GS-22-00778. [Doc. 1 at 1.] He was sentenced to a term of imprisonment of 35 years. [Id.] Petitioner filed a direct appeal, but the South Carolina Court of Appeals dismissed the appeal on July 16, 2015. [Id. at 2.] On September 9, 2015, Petitioner filed a post-conviction relief action (“PCR”) in the Georgetown County Court of Common Pleas at case number 2015-CP-22-00845, presenting claims similar to those he now asserts in this federal habeas action. Id. at 3; see also Dizzley v. State of South Carolina, No. 2015-CP-22-00845 (“Dizzley PCR Action”), available at https://publicindex.sccourts.org/Georgetown/PublicIndex/PISearch.aspx (seach case number “2015CP2200845”) (last visited Jan. 14, 2020). As explained below, it appears that Petitioner's state PCR action remains pending in the state court.
Petitioner contends that he has not raised the grounds asserted in this Petition in the state court “due to ‘fraud upon the court.'” [Doc. 1 at 11.] According to Petitioner, he was “intentionally impeded from raising” his claims in his PCR action. [Id.]
It is appropriate for the District Court to take judicial notice of Petitioner's state PCR action and prior cases filed in this Court. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
In the instant action, Petitioner asserts the following grounds for federal habeas relief: (1) ineffective assistance of counsel, failure to move to quash the indictment, and the second trial violated double jeopardy [Doc. 1 at 5]; (2) after-discovered evidence and ineffective assistance of counsel in violation of Fourteenth Amendment [id. at 7]; (3) prosecutorial misconduct in violation of the Fourteenth Amendment [id. at 9]. While the relief section of the habeas form is blank [id. at 14], Petitioner appears to seek relief from his state conviction and sentence.
STANDARD OF REVIEW
This Court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts (2012).
Because Petitioner is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). However, even under this less stringent standard, the Petition is subject to summary dismissal. 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).
DISCUSSION
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Ordinarily, a state prisoner seeking habeas relief under 28 U.S.C. § 2254 “must exhaust his remedies in state court” and must “give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts.” O'Sullivan v. Boerckel, 526 U.S. 838, 842, 845 (1999); see 28 U.S.C. § 2254(b) (explaining exhaustion requirement).
Here, Petitioner challenges his state conviction, seeking habeas relief under 28 U.S.C. § 2254. Nevertheless, the instant Petition is subject to summary dismissal because Petitioner has failed to exhaust his state remedies. Exhaustion of state court remedies is required by 28 U.S.C. § 2254(b)(1)(A), which provides that “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that (A) the applicant has exhausted the remedies available in the courts of the State ....” 28 U.S.C. § 2254(b)(1); see also Straws v. Padula, No. 4:09-cv-009-HFF-TER, 2009 WL 691190, at *2 (D.S.C. Mar. 16, 2009). “The exhaustion requirement is ‘grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.'” Washington v. Cartledge, No. 4:08-cv-4052-PMD, 2010 WL 1257356, at *1 (D.S.C. Mar. 29, 2010) (quoting Coleman v. Thompson, 501 U.S. 722, 731 (1991). As the Fourth Circuit Court of Appeals has explained, “a federal habeas court may consider only those issues which have been ‘fairly presented' to the state courts.” Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir. 1997) (instructing that, “to satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court. The burden of proving that a claim has been exhausted lies with the petitioner.”) (citations omitted).
This is the third action filed in this Court by Petitioner under § 2254 to challenge his state court conviction and sentence. Petitioner's first action was dismissed without prejudice on May 26, 2017, for failing to exhaust his state court remedies because his PCR action was still pending in the state court. See Dizzley v. Cartledge, No. 8:17-cv-00213-RBH-JDA (D.S.C. May 26, 2017) (“Dizzley I”), Doc. 18 at 3. In that case, the undersigned summarized the requirements to exhaust state court remedies as follows:
To exhaust state court remedies in South Carolina, a direct appeal may be pursued. See State v. Northcutt, 641 S.E.2d 873 (S.C. 2007). If a direct appeal was filed and is ultimately unsuccessful (or if no direct appeal was filed), a petitioner may file an application for PCR in a court of common pleas. See S.C. Code § 17-27-10, et seq. (1976); see also Miller v. Harvey, 566 F.2d 879, 880-81 (4th Cir. 1977) (noting that South Carolina's Uniform Post-Conviction Procedure Act is a viable state court remedy). If a South Carolina prisoner's PCR application is denied or dismissed by a court of common pleas, a petitioner can file a request for writ of certiorari with a South Carolina appellate court. See S.C. Code § 17-27-100; Knight v. State, 325 S.E.2d 535 (S.C. 1985). In fact, if a petitioner's PCR application is denied by a court of common pleas, the petitioner must seek appellate review in the state courts or federal collateral review of the grounds raised in his PCR application may be barred by a procedural default. See Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (finding that exhaustion requires state prisoners to complete at least one complete round of the state's established appellate review process by presenting the ground for relief in a face-up and square fashion).See Dizzley I, Doc. 10 at 3.
Petitioner's second habeas action was also dismissed without prejudice on February 15, 2019, after Petitioner filed a motion for voluntary dismissal. Dizzley v. Warden Lieber Corr. Inst., No. 2:19-cv-00181-RBH-JDA (Feb. 15, 2019) (“Dizzley II”), Doc. 11. In the Order of Dismissal, the Honorable R. Bryan Harwell noted that the case was dismissed because Petitioner was attempting to exhaust his state remedies in a PCR action filed in the state court. Id.
Like before, Petitioner's present action is subject to summary dismissal as it is premature. The undersigned notes that an Order of Dismissal was entered on December 12, 2019, in Petitioner's state PCR action. See Dizzley PCR Action, Order filed Dec. 2, 2019. Petitioner, represented by counsel, then filed a motion for reconsideration of that Order on December 12, 2019. Id., Motion filed Dec. 12, 2019. That motion remains pending in the PCR court. Id. Therefore, because Petitioner's state PCR action remains pending at this time, he cannot demonstrate exhaustion of state remedies under § 2254. See Williams v. Dunlap, No. 8:11-cv-00645-JMC-JDA, 2011 WL 13177179, at *2 (D.S.C. Apr. 21, 2011), Report and Recommendation adopted by 2011 WL 13177174 (D.S.C. July 1, 2011). As such, this Court should not keep this case on its docket while Petitioner finishes exhausting his state remedies. Washington, 2010 WL 1257356, at *2 (explaining that dismissal is proper because “Petitioner simply cannot proceed with the instant petition until his application for post-conviction relief is ruled upon and a petition for a writ of certiorari is considered by the South Carolina Supreme Court”) (citing 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270 (1971); Galloway v. Stephenson, 510 F.Supp. 840, 846 (M.D. N.C. 1981)). For these reasons, the instant § 2254 Petition is premature and is subject to summary dismissal without prejudice.
Petitioner can re-file his § 2254 petition with the Court after he has exhausted his state court remedies, though Petitioner should be mindful of the statute of limitations applicable to this action under 28 U.S.C. § 2244(d), which provides that “[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1); see also Washington, 2010 WL 1257356, at *2. While the limitations period is tolled during the pendency of a properly filed collateral attack on the subject conviction, see 28 U.S.C. § 2254(d)(2), the one-year statute of limitations begins to run on the date the Petitioner's conviction becomes final, not at the end of collateral review.
RECOMMENDATION
Accordingly, it is recommended that this action be dismissed without prejudice and without requiring the Respondent to file an answer or return.
IT IS SO RECOMMENDED.
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 300 East Washington Street, Room 239 Greenville, South Carolina 29601
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).