Opinion
C. A. 8:23-cv-04478-SAL-JDA
10-11-2023
Paul Harris Sweat, Petitioner, v. Warden of Lieber Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
Paul Harris Sweat (“Petitioner”), proceeding pro se and in forma pauperis, brings this action for habeas corpus relief under 28 U.S.C. § 2254. Petitioner is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is presently incarcerated at the Lieber Correctional Institution. [Doc. 1-4 at 1.]
Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B), 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 handwritten document, which was construed as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. [Doc. 1.] Subsequently, Petitioner filed a petition on the standard form AO 241. [Doc. 1-4.] The Court construes both documents together as the Petition filed in this matter. Additionally, Petitioner has filed supporting documents including SCDC inmate grievance forms, letters related to his attempt to expunge his underlying state court conviction, and an arrest warrant and indictment from the state court criminal action. [Docs. 1-1, 1-6.]
Petitioner makes the following pertinent allegations in his handwritten document, which is confusing and difficult to decipher. [Doc. 1.] Petitioner contends that § 16-3-655 of the South Carolina Code conflicts with § 16-17-490. [Id. at 1.] Petitioner contends that in May 1990, while he was a 17-year-old juvenile in North Charleston, he was charged as an adult under § 16-3-655 for criminal sexual conduct (“CSC”) with a minor. [Id. at 3.] He contends he was never convicted of the charge but instead pled guilty to the lesser included offense under § 16-17-490 of contributing to the delinquency of a minor. [Id.] Both charges were brought under the same warrant/indictment number. [Id.] For the past 33 years, an “open arrest/call to notify detainer” has remained on Petitioner's arrest record. [Id.] This has impacted Petitioner's custody level and other privileges. [Id.] ¶ 1999/2000, he was told he had to register as a sex offender. [Id.] It appears that Petitioner has successfully had the detainer removed from his criminal record. [Id. at 2.] However, according to SCDC, he is still ineligible for a lower custody level. [Id.] Petitioner has attempted to have his record expunged, without success. [Id.]
Petitioner makes the following allegations on his AO 241 form petition. [Doc. 1-4.] Petitioner brings this action to challenge a conviction and sentence at case number 1990-GS-10-2209 in the Charleston County Court of General Sessions. [Id. at 1.] Petitioner was sentenced in that case on July 9, 1990, to a term of 5 years probation, 3 months house arrest, and 3 months shock. [Id.] Petitioner contends he entered a nolo contendere plea. [Id.] According to Petitioner, he was charged with grand larceny of a motorcycle and CSC with a minor, but he plead guilty to the charge of grand larceny of a motorcycle and to a lesser included offense of contributing to the delinquency of a minor as to the CSC charge. [Id. at 2.] Petitioner did not appeal his conviction or sentence nor has he sought to collaterally attack his conviction or sentence prior to the present action. [ Id. at 2-5.]
It is unclear what Petitioner means by “shock,” but he may be referring to the Shock Incarceration Program as provided in S.C. Code § 24-13-1310, et seq.
Petitioner asserts the following grounds in his Petition:
GROUND ONE: Ineffective [Assistance] of Counsel. Violation of the [Fifth] and Fourteenth Amendment due process consti[tutional] rights.
Supporting Facts: In May 2, 1990 I was charged with CSC with a minor. It was plead[ed] down to a lesser included offense contributing to delinquency of a minor. Both of these charges remained on the same warrant number same case number. I plead[ed] to the lesser included offense because my attorney informed me the CSC would be removed [or] dropped if I plead[ed] to the lesser included offense . . .
GROUND TWO: Double Jeopardy
Supporting Facts: The original charge of [CSC] with a minor was plead[ed] down to contributing to delinquency of a minor due to the fact that both these charges kept[] the same case number and adopted the same warrant/indictment number. Because of conflict, in 2000 the State of Florida tried to make me register as a sex offender, the solicitor's office has denied my expungement, and the Department of Corrections has denied my right to custody level reduction . . .[Id. at 5-10.] As to his relief, Petitioner asserts he is seeking injunctive relief, declaratory relief, and compensatory damages for mental and emotional stress. [Id. at 20.]
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). 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 apparently seeks to vacate his 1990 conviction in the state court for the lesser included offense of contributing to the delinquency of a minor. The undersigned finds Petitioner is not entitled to the relief he seeks.
Petitioner cannot meet the in-custody requirement
First, Petitioner cannot satisfy the “in-custody” requirement of the habeas statute. 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). The applicable federal habeas statute provides that 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). A 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, Petitioner is presently serving a sentence arising from convictions in the Dorchester County Court of General Sessions for the crime of receiving stolen goods, value more than $2,000 but less than $10,000, at case number 2020-GS-18-02139, and for the crime of traffic/habitual traffic offender at case number 2020-GS-18-01363. See State of South Carolina v. Paul Harris Sweat, Nos. 2020-GS-18-02139 and 2020-GS-18-01363, available at https://publicindex.sccourts.org/Dorchester/PublicIndex/PISearch.aspx (search by case numbers 2020A1810300949 and 20202690192912) (last visited Oct. 9, 2023). Petitioner pled guilty to both charges and was sentenced on April 15, 2021. Id. Petitioner was sentenced to probation on both charges, but his probation was revoked and he was sentenced to a term of 5 years as to both charges on April 4, 2022. Id. Petitioner was received for admission to SCDC on April 13, 2022. See Incarcerated Inmate Search, available at https://public.doc.state.sc.us/scdc-public/ (search by Petitioner's first and last name) (last visited Oct. 9, 2023).
The Court takes judicial notice of Petitioner's state court 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 such, although Petitioner is presently incarcerated in the custody of SCDC, he is not in custody for the 1990 conviction that he challenges in his Petition. That conviction-more than 30 years old-and the sentence imposed for it have long expired. The Court therefore finds that Petitioner has failed to show that he is in custody under the conviction and sentence that he now seeks to challenge, and the Court therefore 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) (“Petitioner is no longer serving a sentence for the 1990 offense. Because the petitioner's sentence has expired on this conviction, he is no longer in custody on this conviction, and, therefore, this court lacks subject matter jurisdiction over his habeas petition with respect to this conviction.”). See, e.g., Champion v. Warden, Kirkland Reception & Evaluation Ctr., No. 2:22-cv-01950-HMH-MGB, 2022 WL 4370377, at *3 (D.S.C. Aug. 24, 2022) (recommending dismissal of a case where the petitioner was seeking to expunge an expired conviction and noting “[r]egardless of whether [the petitioner's] 2010 burglary charge has affected or has the potential to affect [his] subsequent criminal matters, [the petitioner] simply is not “in custody” as contemplated under § 2254”), Report and Recommendation adopted by 2022 WL 4368186 (D.S.C. Sept. 21, 2022)
Further, Petitioner has failed to raise a cognizable claim because “[i]t is well established that an inmate does not possess a liberty interest arising from Due Process Clause in assignment to a particular custody level or security classification or a place of confinement.” Butler v. Daniels, No. 5:15-HC-2175-FL, 2016 WL 6304687, at *3 (E.D. N.C. Oct. 27, 2016). Here, Petitioner appears to argue that his custody classification cannot be lowered because of his 1990 conviction and he has been unable to have that conviction expunged. However, Petitioner is not entitled to a lower custody classification and any such argument does not implicate a liberty interest. Accordingly, “[b]ecause a favorable determination in this action ‘would not necessarily spell immediate or speedier release' from incarceration, petitioner's due process claim is not cognizable pursuant to § 2254.” Turner v. Solomon, No. 5:14-HC-2110-FL, 2015 WL 4066606, at *2 (E.D. N.C. July 2, 2015) (internal quotation marks omitted). Accordingly, Petitioner's allegations fail to assert a cognizable claim on the face of the Petition.
Petitioner has failed to exhaust his state court remedies
Further, even if Petitioner could demonstrate that he is in custody under the conviction that he seeks to challenge, this action would still be 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 post-conviction relief (“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 convicted after entering a nolo contendere plea to the charges of grand larceny of a motorcycle and to a lesser included offense of contributing to the delinquency of a minor as to the CSC charge at case number 1990-GS-10-2209 in the Charleston County Court of General Sessions. He was sentenced on July 9, 1990, to a term of 5 years probation, 3 months house arrest, and 3 months shock. Petitioner acknowledges that he did not file a direct appeal and did not filed a PCR action in the state court. [Doc. 1-4 at 2-5, 8.] Therefore, Petitioner cannot demonstrate exhaustion of his state remedies as required by the federal habeas statute.
The Petition is untimely under the applicable statute of limitations
Finally, this action is subject to summary dismissal because the Petition is untimely under the applicable statute of limitations. Habeas actions are subject to a 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 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) (evaluating when a conviction becomes final under South Carolina law), Report and Recommendation adopted by 2012 WL 359733 (D.S.C. Feb. 2, 2012).
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's right to file objections to this Report and Recommendation constitutes his opportunity to object to a dismissal of his 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).
Here, it plainly appears from the face of the Petition and the publicly available state court records that the action is time barred. As noted, Petitioner was convicted and sentenced on July 9, 1990. [Doc. 1-4 at 1.] Because Petitioner did not file a direct appeal, his conviction became final on July 19, 1990, 10 days after he was sentenced. See Rule 203(b)(2), SCACR; Mack v. Warden, Trenton Corr. Inst., No. 4:16-cv-838-HMH-TER, 2016 WL 4761613, at *2 (D.S.C. Sept. 13, 2016). Thus, the AEDPA's one-year statute of limitations began to run on that date and would expire on July 19, 1991, unless the time were tolled.
As noted, Petitioner did not file a PCR action in the state court. [Doc. 1-4 at 8.] Thus, the one-year statute of limitations continued to run without tolling until July 19, 1991, and Petitioner had until that date to file a federal habeas action. Petitioner filed the instant habeas action on September 1, 2023. As such, Petitioner filed the instant Petition more than 32 years after the expiration of the statute of limitations. Accordingly, the undersigned concludes based on the face of the pleadings that Petitioner's § 2254 Petition is barred by the applicable one-year limitations period. Because the Petition is time-barred, it is subject to dismissal. The undersigned further finds that the interests of justice would not be better served by addressing the merits of the Petition.
A prisoner's pleading is deemed filed at the moment it is delivered to prison authorities for forwarding to the District Court. See Houston v. Lack, 487 U.S. 266, 270-76 (1988). Here, Petitioner's envelope is stamped with a date as having been received by the prison mail room on September 1, 2023. [Doc. 1-3 at 1.]
Petitioner appears to argue that he is entitled to tolling of the statute of limitations. [Doc. 1-4 at 16-19.] Nevertheless, Petitioner has not articulated a valid basis upon which the Court should toll the applicable statute of limitations. As explained above, Petitioner had one year after the judgment of conviction became final to file the instant action. However, nothing in the record establishes that Petitioner pursued his rights diligently between July 19, 1990, when his conviction became final, and September 1, 2023, when he filed this action. Accordingly, Petitioner has not articulated any basis for the Court to equitably toll the statute of limitations.
“To establish grounds for equitable tolling, a petitioner must show (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Justus v. Clarke, 78 F.4th 97 (4th Cir. 2023) (internal quotation marks omitted).
CONCLUSION AND RECOMMENDATION
Consequently, it is recommended that this action be dismissed without requiring the Respondent to file an answer or return.
IT IS SO RECOMMENDED.
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).