Opinion
C. A. 8:21-cv-03492-SAL-JDA
10-28-2021
Kenneth Rivera, Petitioner, v. Warden Nelson of Broad River Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
Kenneth Rivera (“Petitioner”), proceeding pro se, brings this habeas corpus action under 28 U.S.C. § 2254. Petitioner is a prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and is presently incarcerated at the Broad River Correctional Institution (“Broad River”). 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 below, this action is subject to summary dismissal.
BACKGROUND
Petitioner makes the following allegations in his Petition. [Doc. 1.] Petitioner is presently incarcerated at Broad River for a sentence he is serving after being convicted on March 5, 2014, in the Greenville County Court of General Sessions at case No. 2014-GS-23-05139. [Id. at 1.] Petitioner does not challenge that conviction and sentence in the present action. Instead, he challenges a conviction for assault and battery from the West Greenville Summary Court entered on May 5, 2016. [Id. at 2.] According to Petitioner, he was convicted without seeing a judge and he was never afforded the opportunity to plead guilty or speak with an attorney. [Id.] Although Petitioner did not file a direct appeal, he filed an application for post-conviction relief (“PCR”) on April 2, 2020, in the Greenville County Court of Common Pleas at case No. 2020-cp-23-01967. [Id.] Petitioner contends that the PCR action was dismissed on June 10, 2021. [Id.]
The Court takes judicial notice of Plaintiff's state court criminal and post-conviction relief actions as well as his prior actions 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.'”).
As discussed below, Petitioner's assertion that his PCR action was dismissed is incorrect. Petitioner's PCR action remains pending in the state court at this time.
Petitioner asserts the following grounds for habeas relief in his Petition. First, Petitioner asserts he entered an involuntary plea because he never actually pled guilty to the crime for which he was convicted and sentenced. [Id. at 6.] Second, Petitioner asserts he was denied a fair trial because he was never given the opportunity to have a trial before a judge. [Id.] Third, Petitioner asserts he was denied his right to an attorney because he never spoke to an attorney about the crime he was convicted of and was never appointed an attorney. [Id.] For his relief, Petitioner asks that the Court overturn his conviction for assault and battery in the third degree and remove that conviction from his record. [Id. at 7.] Petitioner has attached to his Complaint various documents from the state court records. [Doc. 1-1.]
STANDARD OF REVIEW
A careful review has been made of the pro se Petition filed in this case under established local procedure in this judicial district and pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. 104-132, 110 Stat. 1214. Petitioner filed this action in forma pauperis under 28 U.S.C. § 1915, which authorizes the Court to dismiss a case if it is satisfied that the action fails to state a claim on which relief may be granted, is frivolous or malicious, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
Further, 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). Pursuant to this rule, a district court is “authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994).
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, 390-91 (4th Cir. 1990).
DISCUSSION
In this habeas action under 28 U.S.C. § 2254, Petitioner seeks to vacate his conviction in the state court for assault and battery in the third degree. However, the undersigned finds that the Petition is subject to dismissal because (1) Petitioner is no longer in custody under the sentence for the conviction that he challenges, (2) Petitioner failed to exhaust his state court remedies, and (3) the action is time-barred. The Court will address each issue in turn below.
First, however, the Court will briefly summarize the procedural history of Petitioner's underlying conviction based on a review of the state court records and the records attached to the Petition in this case. On February 6, 2015, the Honorable Letonya T. Simmons issued a warrant for Petitioner's arrest. [Doc. 1-1 at 1.] According to the arrest warrant,
on February 5, 2015, . . . [Petitioner] did intentionally commit battery upon victim, a Greenville County Detention Center Sergeant, by punching the victim in the face with a closed fist. This incident did occur at the Greenville County Detention Center located in Greenville County, SC.[Id.] Petitioner was charged in the West Greenville Summary Court with assault and battery in the third degree at case No. 2015A2330201108. [Id.]; see also State v. Rivera, No. 2015A2330201108, available at the Greenville County Thirteenth Judicial Circuit Public Index, https://publicindex.sccourts.org/Greenville/PublicIndex/PISearch.aspx (search by case No. “2015A2330201108”) (last visited Oct. 27, 2021). Petitioner was represented on that charge by Dorothy Manigault, an attorney with the Greenville County Public Defender's Office. [Doc. 1-1 at 9.] In a letter dated March 12, 2015, Attorney Manigault informed the court that Petitioner wished to plead guilty to the charge and requested a sentence of time served. [Id.] Thereafter, on May 5, 2016, the Honorable Diane Day Cagle, accepted Petitioner's plea and sentenced him to time served, and she entered a sentencing sheet on April 6, 2017. [Id. at 15-16.]
On April 2, 2020, Petitioner filed a PCR action in the Greenville County Court of Common Pleas at case No. 2020-CP-23-01967. [Doc. 1-1 at 3-7]; see also Rivera v. State, No. 2020-CP-23-01967, available at the Greenville County Thirteenth Judicial Circuit Public Index, https://publicindex.sccourts.org/Greenville/PublicIndex/PISearch.aspx (search by case No. “2020CP2301967”) (last visited Oct. 27, 2021). On June 25, 2021, the Horable Perry H. Gravely entered a conditional order of dismissal, granting Petitioner twenty days to provide a reason that the order should not become final. [Doc. 1-1 at 16-19.]
With this background in mind, the undersigned turns to the three reasons identified above for dismissal of this Petition.
The “In Custody” Requirement
First, this action is subject to dismissal because Petitioner is not in custody under the conviction he challenges. Pursuant to § 2254, a writ of habeas corpus is available only if a prisoner demonstrates that he is “in custody in violation of the Constitution or laws or treaties of the United States, ” 28 U.S.C. 2254(a) (emphasis added), which means the habeas petitioner must be “in custody” under the conviction or sentence under attack at the time the petition is filed, Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Because a prisoner can utilize habeas corpus proceedings only if he is challenging the fact or duration of his present confinement, Preiser, 411 U.S. at 489, “[f]ederal courts lack jurisdiction to consider a habeas petition challenging a sentence which has fully expired at the time the petition is filed, ” Hardy v. Warden, No. 6:06-cv-1796-HMH-WMC, 2006 WL 2996107, at *3 (D.S.C. Oct. 19, 2006).
Here, this Court lacks jurisdiction over the Petition because Petitioner is no longer in custody for the state-court conviction he challenges. As noted, Petitioner challenges a conviction from 2016. He was sentenced to time served. Because Petitioner's state-court sentence on his conviction expired long before he filed this Petition, he is not in custody under the conviction he attacks. Therefore, this Court lacks subject matter jurisdiction. See Fields v. Cartledge, No. 0:16-cv-2463-TMC, 2017 WL 3140910, at *3 (D.S.C. July 25, 2017). Even if the Court had jurisdiction over this matter, the Petition would still be subject to dismissal for the additional reasons below.
Exhaustion of State Court Remedies
This action is subject to dismissal because Petitioner has failed to exhaust his state court remedies. 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). Under § 2254, a federal court may issue 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). However, 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); 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) (“[T]o 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).
A state prisoner seeking habeas relief ordinarily “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 the exhaustion requirement). To exhaust state court remedies in South Carolina from a criminal conviction or sentence, a defendant may file a direct appeal. 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 a PCR application 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).
Here, Petitioner has failed to exhaust his state court remedies. As noted, Petitioner was sentenced on May 5, 2016, after pleading guilty to assault and battery in the third degree in the West Greenville Summary Court at case No. 2015A2330201108. Although Petitioner did not file a direct appeal, he did file a PCR action in the Greenville County Court of Common Pleas on April 2, 2020. On June 25, 2021, Judge Gravely entered a conditional order of dismissal. [Doc. 1-1 at 16-19.] However, as of this date, Judge Gravely has not entered a final order of dismissal. Accordingly, Petitioner's PCR action remains pending in the state court.
Therefore, because Petitioner's PCR action remains pending in the state court, he cannot demonstrate exhaustion of his state court remedies as required by the federal habeas statute. 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 court 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)). Thus, the instant Petition is premature and is subject to summary dismissal on this basis.
Statute of Limitations
Finally, even if the Court had jurisdiction and Petitioner had exhausted his state court remedies, this action would nevertheless be subject to dismissal as barred by the applicable statute of limitations. Under the AEDPA, a petitioner has one year to file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1) (“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.”). The statute tolls the limitations period during the time “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2). The statute of limitations is tolled for the entire period of the state post-conviction process, “from initial filing to final disposition by the highest state court (whether decision on the merits, denial of certiorari, or expiration of the period of time to seek further appellate review).” Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999). “Following the denial of relief in the state courts in state habeas proceedings, neither the time for filing a petition for certiorari in the United States Supreme Court, nor the time a petition for certiorari is considered by the United States Supreme Court, is tolled.” Crawley v. Catoe, 257 F.3d 395, 399 (4th Cir. 2001).
Although the limitations period is tolled during the pendency of a properly filed collateral attack on the subject conviction, the one-year statute of limitations begins to run on the date a petitioner's conviction becomes final, not at the end of collateral review. Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000); see also Crawley, 257 F.3d at 398 (evaluating when a conviction becomes final under South Carolina law); Myers v. Warden of McCormick Corr. Inst., No. 1:11-cv-450-TLW-SVH, 2011 WL 7143471, at *8 (D.S.C. Nov. 28, 2011) (same), Report and Recommendation adopted by 2012 WL 359733 (D.S.C. Feb. 2, 2012). In South Carolina, if a defendant does not file a direct appeal, his conviction becomes final ten days after the adjudication of guilt. See Fleming v. South Carolina, No. 3:07-cv-3797-JFA-JRM, 2008 WL 5450273, at *4 (D.S.C. Dec. 31, 2008).
A federal court may raise the issue of the timeliness of a habeas petition sua sponte. Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002). As the Fourth Circuit has noted,
A district court has the discretion, but not the obligation, to consider on its own motion the timeliness of a habeas petition under AEDPA if (1) the parties have fair notice and an opportunity to be heard; (2) the state has not waived the limitations defense; (3) the “petitioner is not significantly prejudiced by the delayed focus on the limitation issue”; and (4) the court “determine[s] whether the interests of justice would be better served by addressing the merits or by dismissing the petition as time barred.”Gray v. Branker, 529 F.3d 220, 241 (4th Cir. 2008) (alteration in original) (quoting Day v. McDonough, 547 U.S. 198, 209-11 (2006)). Once a court has raised the issue, it “must accord the parties fair notice and an opportunity to present their positions” on the issue. Day, 547 U.S. at 210. Petitioner has not addressed the timeliness of his Petition. Upon review, however, the undersigned concludes, from the allegations on the face of the Petition and the documents attached to the Petition, that the action is time-barred. As noted, Petitioner was convicted on the assault and battery charge on May 5, 2016, and sentenced to time served. Petitioner did not file a direct appeal from his conviction or sentence. Instead, Petitioner filed a PCR application in the Greenville County Court of Common Pleas on April 2, 2020. Because Petitioner did not file a direct appeal, his conviction became final on May 15, 2016, which is 10 days after the date of conviction and sentence on May 5, 2016. The statute of limitations began to run on that date and continued to run until Petitioner filed his PCR action on April 2, 2020. By then, approximately 1, 418 days of untolled time had elapsed. Petitioner's limitation period expired on May 15, 2017, one year after it began. Thus, Petitioner filed his Petition more than 2 years and 10 months after the expiration of the statute of limitations. Accordingly, the Petition is time-barred and should be dismissed.
Petitioner's right to file objections to this Report and Recommendation constitutes his opportunity to object to a dismissal of this Petition based on the statute of limitations. See Hill, 277 F.3d at 707; Bilal v. North Carolina, 287 Fed.Appx. 241, 248-49 (4th Cir. 2008).
The undersigned notes that, although state court records show, and Petitioner admits in his Petition [Doc. 1 at 2], that he was convicted and sentenced on May 5, 2016, the sentencing court did not enter a sentencing sheet on the docket until April 6, 2017. However, even if the Court were to use that date as the date of judgment from which to calculate the one year period of limitations, the present action would still be time-barred.
RECOMMENDATION
Accordingly, for the reasons above, it is recommended that this action be DISMISSED without requiring the Respondent to file an answer or return.
IT IS SO RECOMMENDED.
ORDER
Petitioner's 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
250 East North Street, Suite 2300
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).