Opinion
C/A No. 5:18-cv-01240-TLW-KDW
07-20-2018
Rodney R. Parker, Petitioner, v. Warden, Broad River Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Rodney R. Parker ("Petitioner"), proceeding pro se, brings this action pursuant to 28 U.S.C. § 2254 for habeas relief. Petitioner is an inmate at Broad River Correctional Institution, a facility of the South Carolina Department of Corrections ("SCDC"). Upon the court's initial review of Petitioner's original petition, the court provided Petitioner with a court-approved § 2254 habeas petition form and advised him to answer all questions to the extent possible. ECF No. 8. Petitioner did so and submitted the Amended Petition now under review. I. Factual and Procedural Background
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 is authorized to review such petitions for relief and submit findings and recommendations to the district court.
Petitioner seeks to challenge murder and armed robbery convictions entered on a jury verdict in Colleton County, South Carolina on May 25, 2006. Am. Petition, ECF No. 12 at 1. He alleges that his direct appeal concluded on December 11, 2008. Id. at 2. He also alleges that he filed a post-conviction relief ("PCR") application in Colleton County at some point thereafter, however, he does not provide a date for this filing. Id. There is no indication that Petitioner pursued an appeal from his PCR application; however, it is clear that Petitioner acknowledges that none of the points he seeks to raise in the Amended Petition under review were presented for consideration during either his direct appeal or his PCR case. Id. at 5-11. As an excuse for this lack of exhaustion, Petitioner asserts that he was unable to exhaust his points because he just received his "entire case file Rule (5) last year (2017)." Id. at 12. Petitioner does not respond to the question on the petition form about the timeliness of his Amended Petition. Id. at 13. II. 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. The review was conducted pursuant to the procedural provisions of the Rules Governing Habeas Corpus Cases Under Section 2254 and the Anti-Terrorism and Effective Death Penalty Act of 1996, 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, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).
This court is required to construe pro se petitions liberally. Such pro se petitions are held to a less stringent standard than those drafted by attorneys, see Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978), and a federal district court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, however, the Petition submitted in this case 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 currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). III. Discussion
The Amended Petition for a Writ of Habeas Corpus filed in this case should be dismissed because Petitioner has not fully exhausted his state remedies. With respect to his 2006 Colleton County convictions and sentences, Petitioner's sole federal remedies are a writ of habeas corpus under 28 U.S.C. § 2254 and possibly, but less commonly, a writ habeas corpus under 28 U.S.C. § 2241, either of which can be sought only after Petitioner has exhausted his state court remedies. See 28 U.S.C. § 2254(b); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973) (exhaustion also required under 28 U.S.C. § 2241); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Moore v. De Young, 515 F.2d 437, 442-43 (3d Cir. 1975) (exhaustion required under 28 U.S.C. § 2241). Exhaustion "preserves the respective roles of state and federal governments and avoids unnecessary collisions between sovereign powers. States are allowed to vindicate their interest in prompt and orderly administration of justice, while the federal judiciary upholds its responsibility to prevent the exercise of illegitimate authority." Fain v. Duff, 488 F.2d 218, 224 (5th Cir. 1973) (citing Braden). Such considerations should not be dispensed with lightly.
Section 2254's exhaustion requirement provides:
(b)(1) An 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; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be
estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.28 U.S.C. § 2254(b), (c). This doctrine requires that before a federal court will review any allegations raised by a state prisoner, those allegations must first be presented to the state's highest court for consideration. See Picard v. Connor, 404 U.S. at 276. Before a federal court may consider a habeas claim under § 2254, the petitioner must give the state court system "'one full opportunity to resolve any constitutional issues by invoking one complete round of the State's appellate review process . . . .'" Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). That "complete round" of appellate review also includes "discretionary review" such as the filing of a petition for writ of certiorari to the South Carolina Supreme Court seeking review of the dismissal of a PCR application. Id. at 448. In this regard, the South Carolina Supreme Court has specifically stated that a litigant "shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error." In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990) (specifically addressing criminal and post-conviction relief appeals)
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
As noted above, it does not appear from the allegations contained in the Amended Petition that Petitioner raised any of his points with the South Carolina courts before filing the Petition under review in this federal court. As a result, the four grounds for habeas relief raised in the Amended Petition filed in this case have not yet been considered and addressed by courts of the State of South Carolina. This failure to exhaust available state remedies is fatal to this case.
If Petitioner can make a persuasive argument because of new evidence, he might be able to file a second PCR application to raise the points he seeks to raise. See S.C. Code § 17-27-45 (C). However, it does not appear that he attempted to do so before improperly filing this Petition in this court. The United States Court of Appeals for the Fourth Circuit has held that South Carolina's Uniform Post-Conviction Procedure Act, S.C. Code Ann. §§ 17-27-10 through 17-27-160, is a viable state-court remedy. Miller v. Harvey, 566 F.2d 879, 880-81 (4th Cir. 1977); Patterson v. Leeke, 556 F.2d 1168, 1170-73 & n.1 (4th Cir. 1977). Petitioner can obtain PCR forms from the Clerk of Court for Colleton County or from the South Carolina Attorney General's Office, whose mailing address is Post Office Box 11549, Columbia, South Carolina 29211. Because it is clear from the face of the pleadings in this case that Petitioner has potentially viable state court remedies which have not been fully utilized (PCR, appellate review of PCR), this court should not keep this case on its docket while Petitioner is exhausting his state remedies. See Slayton v. Smith, 404 U.S. 53, 54 (1971) (federal habeas court should not retain the case on its docket pending exhaustion of state court remedies, but, absent special circumstances, should dismiss the petition); Salama v. Virginia, 605 F.2d 1329, 1330 (4th Cir. 1979) (same). IV. Recommendation
The court offers no opinion as to the potential success of any such claim.
Accordingly, it is recommended that the Amended Petition for a Writ of Habeas Corpus in this case be dismissed. As it does not appear that Petitioner would be able to cure the deficiencies in his Amended Petition through further amendment, it is recommended that this dismissal be with prejudice. See, e.g., Mitchell v. Unknown, No. 17-7638, 2018 WL 3387457, at *1 (4th Cir. July 11, 2018) (noting the district court's without-prejudice dismissal of § 2254 petition did not "clearly preclude amendment;" dismissing appeal for lack of jurisdiction and remanding to district court to exercise discretion as to whether to permit another amendment or to dismiss the petition with prejudice, "thereby rendering the dismissal order a final, appealable order".)
IT IS SO RECOMMENDED. July 20, 2018
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
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 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
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); 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).