Opinion
C. A. 4:23-6043-SAL-KDW
01-08-2024
Kathleen Gerald, Petitioner, v. N.C. Vital Records, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge
Kathleen Gerald (“Petitioner”), proceeding pro se, filed this Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 224 asking the court to void the original death certificate for her mother, Clara McGrier, due to fraud. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends the district judge dismiss the Petition in this case without prejudice.
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
I. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court,1the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints are held to a less-stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
Petitioner alleges her mother Clara McGrier's death certificate, filed on September 16, 2021, was committed by fraud and/or without legal authority. ECF No. 1 at 6. Petitioner states McGrier's death certificate has her daughter listed as Twanna Lattimore, but that information is incorrect. Id. Petitioner indicates Horry County court records will show that McGrier is Petitioner's mother. Id.
A writ of habeas corpus pursuant to 28 U.S.C. § 2241 functions to grant relief when an inmate's current custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(c)(3). On the § 2241 form habeas petition completed by Petitioner she indicates she is not a “prisoner” who is “in custody.” As Petitioner is not a prisoner in the custody of a state or federal authority, her claims may not be brought pursuant to a § 2241 habeas petition. See 28 U.S.C. § 2241; see also Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (“The federal habeas corpus statute requires that the applicant must be ‘in custody' when the application for habeas corpus is filed.”). As this court lack jurisdiction to consider Petitioner's claims, the undersigned recommends Petitioner's § 2241 Petition be summarily dismissed.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge dismiss the petition in the above-captioned matter without prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note 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 com! 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
Post Office Box 2317
Florence, South Carolina 29503
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); Diomas v. Am, 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).