Opinion
C/A 4:23-4590-HMH-TER
01-04-2024
James Carl Whaley, #1001117, a/k/a James C. Whaley, #357132, Petitioner, v. Nick Gallam, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
Petitioner, proceeding pro se and in forma pauperis, brings this habeas action. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. The action is subject to summary dismissal.
Petitioner has served the terms of imprisonment on the state convictions at issue, but any other “custodial” terms are unclear as to probation/supervised release. Petitioner is detained awaiting SVPTP civil commitment proceedings. Out of an abundance of caution:“The case is not moot because the existence of certain ‘collateral consequences' to the petitioner's conviction prevent a habeas petition from becoming moot.” Crockett v. Clarke, 35 F.4th 231, 240 n4 (4th Cir. 2022), cert. denied, 143 S.Ct. 330 (2022) (citing Plymail v. Mirandy, 8 F.4th 308, 315 (4th Cir. 2021)).
DISCUSSION
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted 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, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). 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 Courts. Following the required initial review, it is recommended that this case should be summarily dismissed.
Declining to adopt the prior recommendation for dismissal, the district judge directed the undersigned to provide “further consideration of the petition under 28 U.S.C. § 2241.” (ECF No. 12).
Petitioner alleges he is challenging Aiken County convictions from 2013 judgments in two cases, 2013-GS-02-1272, which is indecent exposure, and 2011-GS-02-01642-43, which is lewd act upon a child. (ECF No. 1 at 1)(“challenges the decisions of convictions in Aiken County for the 2013 judgments”). Petitioner alleges his last attempted challenge of the 2013 convictions was denied review by the Fourth Circuit Court of Appeals. (ECF No. 1 at 1). Petitioner's first ground is in regard to whether he waived a jury trial. (ECF No. 1 at 2). Petitioner's second ground is he “did not have the required trial by an impartial jury.” (ECF No. 1 at 2). Petitioner's requested relief is expunging his record of the state convictions and dismissing his pending civil commitment proceedings or alternatively, “remand to the trial court for affirmative action and ordering dismissal/adjudication of 2020-CP-02-1640.” (ECF No. 1 at 3). Petitioner's attached memorandum discusses plea agreements and contracts. (ECF No. 1-1).
Petitioner labeled his filing as under § 2241. The Fourth Circuit Court of Appeals has held that those contesting state convictions cannot simply avoid/opt out of § 2254's operation of restrictions by “writing 2241 on his petition.” In re Wright, 826 F.3d 774, 781 (4th Cir. 2016). Because Petitioner is clearly challenging Aiken County 2013 convictions, which have previously been challenged in this court to finality, this action would also be successive under § 2254 and without authorization from the Fourth Circuit. (ECF No. 1); Whaley v. Warden, No. 4:20-cv-4366-HMH.
“[T]his Court cannot grant the relief that Petitioner seeks (vacation of state criminal convictions and sentence) by way of a petition for habeas corpus filed under § 2241.” Llovera v. Fla., No. 4:13-cv859-TMC, 2013 WL 5468256, at *4 (D.S.C. Sept. 30, 2013). “Based on the reasoning of Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 403-404 (2001) and Daniels, Petitioner's state court conviction is conclusively valid because it was unsuccessfully challenged in its own right, and thus is not subject to collateral attack under § 2241.” Jones v. Atkinson, No. 0:12-cv-815-TLW-PJG, 2012 WL 3704939, at *3 (D.S.C. July 11, 2012), report and recommendation adopted, 2012 WL 3705067 (D.S.C. Aug. 27, 2012). “The Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 in this case should be dismissed because all of Petitioner's claims about the underlying validity of his state criminal convictions are cognizable only under 28 U.S.C. § 2254, not under 28 U.S.C. § 2241.” Cox v. McCabe, No. CA 3:11-3256-TMC-JRM, 2012 WL 220253, at *2 (D.S.C. Jan. 3, 2012), report and recommendation adopted, 2012 WL 220248 (D.S.C. Jan. 24, 2012). Section 2241 may not be used to circumvent the procedural requirements that those who are in custody under a state court judgment must meet. Id. While Petitioner is in pre-trial detainment for other matters, it appears Petitioner is expressly contesting two 2013 state court convictions. Petitioner appears to believe if he can wipe out any sexually related past convictions, then he will not be eligible for a civil commitment proceeding to be placed in the SVPTP. (ECF No. 1).
Simply, Petitioner has failed to state a cognizable claim for relief under § 2241. See Clemmons v. South Carolina, 2008 WL 2845636, at *2 (D.S.C. July 18, 2008)(seeking the vacation of state convictions is relief that “must be pursued under § 2254” and is not viable in a § 2241 petition).
To the extent Petitioner's claim seeks relief as a state detainee awaiting SVPTP commitment proceedings and part of his request for relief being “ordering dismissal/adjudication of 2020-CP-02-1640” (ECF No. 1 at 3), his claim should be summarily dismissed. To be eligible for § 2241 relief, Petitioner must exhaust his state court remedies and show that special circumstances warrant federal intervention. Brazell v. Boyd, 1993 WL 98778 (4th Cir. 1993). Petitioner's SVPTP proceedings remain pending in Aiken County and have not been completed. See https://publicindex.sccourts.org/aiken/publicindex/(search parameters limited by Petitioner's name). Additionally, the court has not identified any special circumstances that justify federal interference in Petitioner's pending SVPTP proceedings in state court. See Id. at *2(“[W]here 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.”)
This action is subject to summary dismissal.
RECOMMENDATION
Accordingly, it is recommended that the Petition in this case be dismissed without prejudice and without requiring the respondent to file a return.
IT IS SO ORDERED.
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
Post Office Box 2317
Florence, South Carolina 29503
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).