Opinion
2:22-cv-00220-RMG-MGB
02-04-2022
Emory W. Roberts, Jr., #373393, Petitioner, v. Warden Kendall, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES DISTRICT JUDGE
Emory W. Roberts, Jr., a state prisoner proceeding pro se, brings this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), the undersigned is authorized to review the petition and submit a recommendation to the assigned United States District Judge. As discussed in greater detail below, the undersigned recommends that the petition be summarily dismissed without prejudice for failure to exhaust available state remedies.
The undersigned takes judicial notice of the records filed in Roberts' underlying state proceedings (Case No. 2020-CP-08-01349), as well as his related federal actions (Case Nos. 2:17-cv-00177-RMG-MGB, 2:17-cv-00453-RMG-MGB). See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (noting that a federal court may take judicial notice of the contents of its own records, as well as those public records of other courts); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); see also Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009) (noting that the court may also take judicial notice of factual information located in postings on government web sites).
In April 2016, Roberts was indicted for various drug charges stemming from his involvement in a drug trafficking ring operating in Berkeley and Dorchester Counties. (Indictment Nos. 2016-GS-47-02, -03.) On February 15, 2017, while awaiting trial, Roberts filed a federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the legality of his detention at the Hill Finklea Detention Center. (Case No. 2:17-cv-00453-RMG-MGB.) On July 28, 2017, a Berkeley County jury convicted Roberts on eight counts, resulting in an aggregate sentence of twenty five years' imprisonment. (See Case No. 453, Dkt. Nos. 49-2, 49-3.) Consequently, Roberts' federal habeas petition was dismissed without prejudice as moot on October 20, 2017. (Case No. 453, Dkt. Nos. 54, 57.)
Following a timely notice of appeal, the South Carolina Court of Appeals affirmed Roberts' criminal convictions and sentences on January 29, 2020, and later denied his petition for rehearing on March 27, 2020. On April 24, 2020, Roberts filed a petition for a writ of certiorari with the South Carolina Supreme Court, which was likewise denied on October 16, 2020. Notably, while Roberts' direct appeal was pending, he also filed an application for post-conviction relief (“PCR”), which is currently before the Berkeley County Court of Common Pleas. (Case No. 2020-CP-08-01349.)
Much of the remaining background can be found in the records filed in Case No. 2020-CP-08-01349. See https://publicindex.sccourts.org/berkeley/publicindex/.
It is against this procedural background that Roberts now attempts to challenge his conviction and sentence under 28 U.S.C. § 2254. Specifically, Roberts alleges ineffective assistance of trial counsel; insufficient evidence; prosecutorial misconduct; and violations of his right to due process with respect to certain “Brady materials, ” among other things. (See Dkt. Nos. 1, 1-2.) Roberts asks that the Court grant him “summary judgment regarding all raised issues in [the] petition.” (Dkt. No. 1-1.)
STANDARD OF REVIEW
Under the established local procedure in this judicial district, a careful review has been made of Roberts' pro se petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”); 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, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); and Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
The narrow question before the Court is whether it “plainly appears” that Roberts is not entitled to any relief. Rule 4, Rules Governing § 2254 Cases. If so, his petition must be dismissed; if not, the Warden must respond. Id. Because Roberts is a pro se litigant, his petition is accorded liberal construction. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon, 574 F.2d at 1151. Even under this less stringent standard, however, the Court cannot 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). Such is the case here.
DISCUSSION
It is well-settled that state prisoners must exhaust all available state-court avenues for challenging their convictions before they seek habeas relief in federal court. See 28 U.S.C. § 2254(b)(1). Indeed, § 2254 generally forbids federal courts from granting collateral relief until prisoners have “fairly presented” their claims in each appropriate state court. Baldwin v. Reese, 541 U.S. 27, 27 (2004); see also Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (“The exhaustion requirement . . . serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights.”); Stewart v. Warden of Lieber Corr. Inst., 701 F.Supp.2d 785, 790 (D.S.C. 2010) (noting that “a federal habeas court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them”). To satisfy his burden, the petitioner must therefore show that both the operative facts and the controlling legal principles were presented to the highest state court. Gordon v. Braxton, 780 F.3d 196, 201 (4th Cir. 2015).
Because Roberts' PCR proceedings appear to be ongoing, any consideration of Roberts' habeas claims would require this Court to make findings on issues not yet decided by the appropriate state courts of South Carolina. To be sure, Roberts' habeas petition explicitly notes that each of his proposed grounds for relief are currently “pending” before the PCR court. (See Dkt. Nos. 1, 1-2.) Thus, Roberts' federal habeas claims are unexhausted and premature at this stage. See Rogers v. Warden, McCormick Corr. Inst., No. 8:06-cv-2724-MBS-BHH, 2006 WL 4017752, at *4 (D.S.C. Oct. 5, 2006), adopted, 2007 WL 397370 (D.S.C. Jan. 30, 2007) (“Since Petitioner still has at least two viable state court remedies which have not been fully utilized (the pending PCR case and a petition for writ of certiorari in the South Carolina Supreme Court if the PCR case is unsuccessful), this Court should not keep this case on its docket while Petitioner is exhausting his state remedies.”); see also Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (noting that state prisoners must invoke “one complete round of the State's established appellate review process”).
The undersigned therefore recommends that Roberts' habeas petition be dismissed so that he may exhaust his state-court remedies as required under 28 U.S.C. § 2254(b)(1). See, e.g., Goss v. Williams, No. 2:18-cv-2938-BHH, 2020 WL 502635, at *2 (D.S.C. Jan. 31, 2020), appeal dismissed, 814 Fed.Appx. 776 (4th Cir. 2020) (dismissing pro se § 2254 petition for failure to exhaust state remedies where PCR application was still pending before state court); Braveboy v. James, No. 8:20-cv-03486-TMC-JDA, 2020 WL 8713682, at *3 (D.S.C. Nov. 10, 2020), adopted, 2021 WL 423410 (D.S.C. Feb. 8, 2021) (same).
CONCLUSION
For the reasons discussed above, the undersigned finds that Roberts cannot cure the defects in his petition by mere amendment. The undersigned therefore RECOMMENDS that the Court summarily dismiss Roberts' petition, without prejudice and without requiring the Warden to respond.
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
Post Office Box 835
Charleston, South Carolina 29402
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).