Opinion
C. A. 4:22-1774-MBS-TER
06-24-2022
James Edward Rose, Jr., #1432, Petitioner, v. Randy Demory, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge.
Petitioner, proceeding pro se, brings this action as a state pre-trial detainee requesting habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district judge. The Petition is subject to summary dismissal.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings. The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). 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 currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).
Furthermore, 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 of Rules Governing Section 2254 Cases in the United States District 1 Courts. Following the required initial review, it is recommended that the Petition should be summarily dismissed.
The Rules Governing Section 2254 Cases are also applicable to Section 2241 cases. See Rule 1(b) of Rules Governing Section 2254 Cases.
DISCUSSION
Petitioner has filed what is referred to as a local § 2241 Petition. Petitioner is a state pretrial detainee requesting relief of “enlargement, freed from custody, release without bail, dismissal of charges.” (ECF No. 1 at 8). Petitioner does not enumerate any grounds but states “see attached;” attached is 140 pages of documents, including two South Carolina Supreme Court decisions unrelated to Petitioner himself, a letter from the Office of Disciplinary Counsel stating Petitioner needed to provide more details if he wanted to file an actual complaint, a statement stamped filed in June 2021 in state court where Petitioner states he does not understand the charges, several handwritten letters to the state court in 2021, November 2020 indictments, SLED lab reports, a letter to the solicitor, affidavits by Plaintiff, warrants, booking report, trespass notice form, use of force report, incident report, and various other attachments. (ECF Nos. 1-1, 1-2). In some of the attachments under a liberal construction, Plaintiff mentions speedy trial and being held without bond. (ECF No. 1-1 at 23, 43). Some of these attachments are titled with other case numbers and parties.
Liberal construction of pro se pleadings does not mean that the court constructs Petitioner's arguments for him. See Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999).
Petitioner is detained on a number of charges in Berkeley County. Petitioner was arrested in October 2019 for resisting arrest with a deadly weapon - 1st offense, 2019A0810301879, multiple motions for bond were filed, the most recent order was entered on May 13, 2022, and bond set on 2 May 19, 2021. Petitioner was indicted on November 4, 2020 for: -2019A0810301877, possession of firearm or ammunition by person convicted of violent felony, multiple motions for bond were filed, the most recent order was filed on May 13, 2022, two bonds are noted, one on October 7, 2019, and one on May 19, 2021; -2019A0810301878, unlawful carrying of pistol, multiple motions for bond were filed, the most recent order was filed on May 13, 2022, bond was set May 19, 2021; -2019A0810301880, possession of methamphetamine, multiple motions for bond were filed, the most recent order was filed on May 13, 2022, and bond set on May 19, 2021.
Petitioner was indicted on July 21, 2021 for: -2020A0820500340, weapons / possession of firearm or ammunition by person convicted of violent felony, multiple motions for bond were filed, the most recent order was filed on May 13, 2022, bond set 5/19/21; -2020A0820500341, drugs / manuf., poss. of other sub. in Sch. I, II, III or flunitrazepam or analogue, w.i.t.d. - 1st offense, multiple motions for bond were filed, the most recent order was filed on May 13, 2022, bond was set on May 19, 2021; -2020A0820500342, possession of less than one gram of meth. or cocaine base, 1st offense, multiple motions for bond were filed, the most recent order was filed on May 13, 2022, bond was set on May 19, 2021. Petitioner was indicted on October 20, 2021 for:-2021GS0801140, weapons/possession of firearm or ammunition by person convicted of violent felony, there is a pending motion for bond filed on March 10, 2022.
See generally, https://publicindex.sccourts.org/Berkeley/PublicIndex/PISearch.aspx(with search parameters limited by Petitioner's name). The court may take judicial notice of factual information located in postings on government websites. See In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records); Williams v. Long, No. 07-3459-PWG, 2008 WL 4848362 at *7 (D. Md. Nov. 7, 2008) (noting that some courts have found postings on government websites as inherently authentic or self-authenticating).
Attorney Michael Kerr represents Petitioner on all the pending charges. 3
This case is subject to summary dismissal based on the following principles regarding exhaustion of state court remedies and abstention.
Ordinarily, federal habeas corpus relief for a state prisoner is available post-conviction. However, “[p]re-trial petitions for habeas corpus are properly brought under 28 U.S.C. § 2241, which applies to persons in custody regardless of whether final judgment has been rendered and regardless of the present status of the case pending against him.” United States v. Tootle, 65 F.3d 381, 383 (4th Cir. 1995) (internal quotations and citation omitted). “[A]n attempt to dismiss an indictment or otherwise prevent a prosecution” is not attainable through federal habeas corpus. Dickerson v. State of Louisiana, 816 F.2d 220, 226 (5th Cir. 1987) (quoting Brown v. Estelle, 530 F.2d 1280, 1283 (5th Cir. 1976)).
In Younger v. Harris, the United States Supreme Court held that a federal court should not equitably interfere with state criminal proceedings “except in the most narrow and extraordinary of circumstances.” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996). The Younger court noted that courts of equity should not act unless the moving party has no adequate remedy at law and will suffer irreparable injury if denied equitable relief. Younger v. Harris, 401 U.S. 37, 43-44 (1971).
The following test is applicable to determine when abstention is appropriate: “(1) there are ongoing state judicial proceedings; (2) the proceedings implicate important state interests; and (3) there is an adequate opportunity to raise federal claims in the state proceedings.” Martin Marietta Corp. v. Maryland Comm'n on Human Relations, 38 F.3d 1392, 1396 (4th Cir. 1994) (citing Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)).
The information contained in the Petition filed in this case, supplemented by public records, indicate that an ongoing state criminal proceeding exists. The second criteria has been addressed by 4 the United States Supreme Court's statement that “the States' interest in administering their criminal justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief.” Kelly v. Robinson, 479 U.S. 36, 49 (1986). The Court also addressed the third criteria in noting “‘that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.' ” Gilliam, 75 F.3d at 903 (quoting Kugler v. Helfant, 421 U.S. 117, 124 (1975)).
Specifically, federal habeas relief is available under § 2241 only if “special circumstances” justify the provision of federal review. Dickerson, 816 F.2d at 224-26; see also Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489-90 (1973). While “special circumstances” lacks any precise, technical meaning, courts have looked to whether procedures exist which would protect a petitioner's constitutional rights without pre-trial intervention. Moore v. DeYoung, 515 F.2d 437, 449 (3d Cir. 1975). Where a threat to the petitioner's rights may be remedied by an assertion of an appropriate defense in state court, no special circumstance is shown. Id.; see also Drayton v. Hayes, 589 F.2d 117, 121 (2d Cir. 1979). Where the right may be adequately preserved by orderly post-trial relief, such as by appeal or collateral review processes, special circumstances are likewise nonexistent. Moore, 515 F.2d at 449.
Petitioner's claims may be raised in state court. Petitioner is represented by counsel in state court and counsel has filed motions over time and recently for Petitioner. Because Petitioner can pursue his claims in state court, he fails to demonstrate “special circumstances,”or to show that he 5 has no adequate remedy at law and will suffer irreparable injury if denied his requested relief of release from imprisonment. See Younger, 401 U.S. at 43-44. Petitioner is precluded from federal habeas relief at this time and his Petition should be dismissed.
Petitioner's liberally construed speedy trial allegations do not meet the criteria of special circumstances. There has not been inordinate delay. See e.g. Mathis v. Hood, 851 F.2d 612 (2d Cir. 1988)(six-year delay).
RECOMMENDATION
Accordingly, it is recommended that the Petition be dismissed without prejudice and without requiring the respondent to file a return.
Petitioner's attention is directed to the important notice on the next page. 6
Notice of Right to File Objections to Report and Recommendation
The petitioner is advised that he may file specific written objections to this Report and Recommendation with the District Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In the absence of a timely filed objection, a district court judge 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 & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005).
Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed.R.Civ.P. 6(a) & (e). Filing by mail pursuant to Fed.R.Civ.P. 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 the waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); and Wright v. Collins, 766 F.2d 841 (4th Cir. 1985). 7