Opinion
C. A. 8:23-cv-04820-MGL-JDA
11-02-2023
Robert Davis Smith, Jr., Petitioner, v. Warden of Tyger River Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Robert Davis Smith, Jr. (“Petitioner”), proceeding pro se and in forma pauperis, brings this habeas corpus action under 28 U.S.C. § 2254. Petitioner is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is presently confined at the Tyger River Correctional Institution. [Doc. 1 at 1.] 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 commenced this action by filing a petition for habeas corpus pursuant to 28 U.S.C. § 2254 (the “Petition”). [Doc. 1.] Petitioner alleges that he was convicted for the crime of first degree criminal sexual conduct and sentenced on March 4, 2016, to a term of imprisonment of 23 years in the Greenville County Court of General Sessions at case number 2013-GS-23-07305. [Id. at 1.] The South Carolina Court of Appeals affirmed Petitioner's conviction and sentence on July 21, 2017, at case number 2016-000576. [Id. at 2.] The South Carolina Supreme Court denied a petition for writ of certiorari at case number 2019-000162. [Id. at 3.] Petitioner appears to allege that he filed a post-conviction relief (“PCR”) action in the Greenville County Court of Common Pleas on October 31, 2019, at case number 2019-cp-23-04401, but he does not provide the date or manner of the result of that action. [ Id. at 4-5.]
Petitioner lists the date of filing as “10/31/2017” [Doc. 1 at 4]; however, this date appears to be a scrivener's error and the year should be 2019.
As discussed below, Petitioner has filed two PCR actions, not one. However, he omits information in his Petition about the second PCR action.
Petitioner asserts the following grounds in the present Petition:
Petitioner provides detailed supporting facts for his grounds, which the Court will not summarize here. The undersigned, however, has carefully reviewed all of Petitioner's allegations in the Petition.
GROUND ONE: Ineffective Assistance of Counsel. [Petitioner] was deprived of the effective assistance of counsel when Mr. Randy Chambers failed to call [Petitioner] as the first defense witness. Thus, [Petitioner] was deprived of his fundamental due process right to present his case and/or the basic right to be heard in his defense at a fair trial.
GROUND TWO: [Petitioner] was deprived of the effective assistance of counsel during the trial preparation stage of his criminal proceeding. His attorney, Mr. Randy Chambers, failed to investigate critical issues in the case. Counsel's failures rendered [Petitioner's] trial fundamentally unreliable, because counsel's conduct deprived [Petitioner] of his due process right to present critical defense evidence at trial.
GROUND THREE: Mr. Chambers provided ineffective assistance of counsel at trial when he failed to object to plain errors at the trial that affected [Petitioner's] substantial rights.
GROUND FOUR: The State Court imposed [Petitioner's] sentence without jurisdiction to enter a judgment. Moreover, Mr. Chambers failure to object constituted ineffective assistance of counsel.
GROUND FIVE: [Petitioner] received ineffective assistance of counsel at the appellate stage of the proceedings, when counsel failed to raise certain plain errors on direct appeal.
GROUND SIX: [Petitioner's] incarceration represents a criminal sexual conduct of the state and federal criminal justice system that has resulted in a violation of the [T]hirteenth [A]mendment.[Id. at 6-19.] For his relief, Petitioner requests that the Court vacate his sentence. [Id. at 27.]
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in the above-captioned case. The review was conducted pursuant to the procedural provisions of 28 U.S.C. § 1915, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. 104-132, 110 Stat. 1214, 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).
Petitioner filed this action in forma pauperis under 28 U.S.C. § 1915. This statute 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
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).
This action is subject to summary dismissal because Petitioner has not exhausted his state court remedies. The 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) (instructing that, “to 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, the Petition is subject to summary dismissal because Petitioner has failed to exhaust his state court remedies. The Court will begin with a brief summary of Petitioner's relevant state court proceedings.
The Court takes judicial notice of Petitioner's state court actions including the original criminal proceedings, his applications for post-conviction relief, and his appeals from those actions. See Philips v. Pitt Cnty. 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 noted, Petitioner was convicted of the crime of first degree criminal sexual conduct and sentenced on March 4, 2016, to a term of imprisonment of 23 years in the Greenville County Court of General Sessions at case number 2013-GS-23-07305. See Greenville County Thirteenth Judicial Circuit Public Index, https://publicindex.sccourts.org/ Greenville/PublicIndex/PISearch.aspx (search by case number 2013A2320601632) (last visited Nov. 2, 2023). Petitioner then filed a notice of appeal on March 17, 2016, in the South Carolina Court of Appeals at case number 2016-000576. See State v. Smith, No. 2016-000576 (S.C. Ct. App. Dec. 19, 2018), available at https://ctrack.sccourts.org/ public/caseSearch.do (search by case number “2016-000576”) (last visited Nov. 2, 2023). The Court of Appeals affirmed Petitioner's conviction and sentence on December 19, 2018, denied a petition for rehearing on January 17, 2019, and issued a remittitur on July 2, 2019. Id. The Supreme Court of South Carolina denied Petitioner's petition for a writ of certiorari on June 28, 2019. See State v. Smith, No. 2019-000162 (S.C. Jun. 28, 2019), available at https://ctrack.sccourts.org/public/caseSearch.do (search by case number “2019-000162”) (last visited Nov. 2, 2023).
Petitioner filed a PCR action in the Greenville County Court of Common Pleas at case number 2017-cp-23-06807 on October 31, 2017, prior to the conclusion of his direct appeal. See Smith v. State, No. 2017-cp-23-06807, available at the Greenville County Thirteenth Judicial Circuit Public Index, https://publicindex.sccourts.org/Greenville/ PublicIndex/PISearch.aspx (search by case number 2017cp2306807) (last visited Nov. 2, 2023). That PCR action was dismissed without prejudice on September 28, 2018. Id.
Petitioner then filed a second PCR action in the Greenville County Court of Common Pleas on July 30, 2019. See Smith v. State, No. 2019-cp-23-04401, available at the Greenville County Thirteenth Judicial Circuit Public Index, https://publicindex. sccourts.org/Greenville/PublicIndex/PISearch.aspx (search by case number 2019cp2304401) (last visited Nov. 2, 2023). That action remains pending.
Because Petitioner's PCR action remains pending in the state court, he cannot demonstrate exhaustion of his state remedies as required by the federal habeas statute. Mitchell v. Warden of Ridgeland Corr. Inst., No. 9:21-cv-02121-CMC-MHC, 2022 WL 3146301, at *3 (D.S.C. May 13, 2022) (“[B]ecause [Petitioner's] PCR action remains pending, he has failed to exhaust his state court remedies as required by 28 U.S.C. § 2254.”), Report and Recommendation adopted by 2022 WL 2712542 (D.S.C. July 13, 2022), appeal dismissed, No. 22-6859, 2022 WL 10416514 (4th Cir. Oct. 18, 2022), cert. denied, 143 S.Ct. 803 (2023). As such, this Court should not keep this case on its docket while Petitioner finishes exhausting his state remedies. See Young v. Warden of Evans Corr. Inst., No. 6:16-cv-2849-TMC, 2017 WL 4129459, at *5 (D.S.C. Sept. 19, 2017) (noting the petitioner had a pending PCR action in the state court and concluding “Petitioner's failure to exhaust state court remedies warrants dismissal of this habeas petition without prejudice”). For these reasons, the instant Petition is subject to summary dismissal without prejudice.
RECOMMENDATION
Accordingly, it is recommended that this action be dismissed without prejudice and without requiring the Respondent to file an answer or return.
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
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).