Opinion
C. A. 6:22-cv-00836-JD-KFM
04-18-2022
Cederick Wise, Petitioner, v. Kenneth Nelson, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
The petitioner, a state prisoner proceeding pro se and in forma pauperis, brings this action pursuant to 28 U.S.C. § 2254 for habeas relief. 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 is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons set forth below, it is recommended that the petitioner's § 2254 petition be summarily dismissed.
ALLEGATIONS
Petitioner's Conviction and Sentence
The petitioner is currently incarcerated pursuant to orders of commitment by the Sumter County General Sessions Court. See Sumter County Public Index, https://publicindex.sccourts.org/Sumter/PublicIndex/PISearch.aspx (enter the petitioner's name and H536834, H536835, H538107, H538108) (last visited April 18, 2022). On November 14, 2005, the petitioner plead guilty to two counts of kidnapping, one count of grand larceny, and one count of strong arm robbery. Id. He was sentenced to two 30-year concurrent sentences on the kidnapping charges, with his sentence to be suspended upon service of 21 years' incarceration and five years' probation; a 15-year concurrent sentence for strong arm robbery; and a ten-year concurrent sentence for grand larceny. Id. According to the South Carolina Department of Corrections (“SCDC”) Inmate Search Detail Report, the petitioner began serving his sentence on October 28, 2003. See South Carolina Department of Corrections Incarcerated Inmate Search, https://public.doc. state.sc.us/scdc-public/ (enter the petitioner's first and last name) (last visited April 18, 2022). On September 16, 2021, the petitioner filed a post-conviction relief (“PCR”) action in the Sumter County Court of Common Pleas, arguing that SCDC improperly calculated his sentence and he should be released. See Sumter County Public Index (enter the petitioner's name and 2021CP4301600) (last visited April 18, 2022). The petition remains pending at this time. Id.
In the instant matter, the petitioner asserts that his due process rights have been violated and he is being falsely imprisoned based upon an alleged improper calculation of his sentence by SCDC (doc. 1 at 5-9). He contends that his max-out date should have been August 13, 2021, or August 17, 2021, and that time served from July 2018 to June 2019 has not been properly calculated (id. at 5). For relief, the petitioner seeks to be immediately released from prison (id. at 17).
STANDARD OF REVIEW
The undersigned has reviewed the 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 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's 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 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, 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, 391 (4th Cir. 1990).
DISCUSSION
A habeas corpus application allows a petitioner to challenge the fact, length, or conditions of custody and seek immediate release. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 484-85 (1973). Because the petitioner is in custody pursuant to the judgment of a State Court his application is evaluated under 28 U.S.C. § 2254 for purposes of 28 U.S.C. § 2244(b), even if the petitioner challenges the execution of a state sentence. In re Wright, 826 F.3d 774, 779 (4th Cir. 2016). As outlined in more detail below, the petition is subject to dismissal because it is premature.
The petitioner's habeas petition is subject to summary dismissal as premature because he has failed to exhaust his state court remedies. To exhaust state court remedies when attacking the execution of a sentence, a petitioner must follow the procedure set out in Al-Shabazz v. State, 527 S.E.2d 742, 750 (S.C. 2000). See Slezak v. S.C. Dep't of Corrs., 605 S.E.2d 506, 507 (S.C. 2004). Generally, the South Carolina Supreme Court has identified a state prisoner's sentence calculation claim as properly being raised through the prison grievance process with appeal to the South Carolina Administrative Law Court (“SCALC”), rather than through a PCR application filed in circuit court. See Brown v. Warden of Kirkland Corr. Inst., C/A No. 4:18-cv-00369-HMH-TER, 2018 WL 4211999, at *3 (D.S.C. Aug. 15, 2018) (citing Al-Shabazz, 527 S.E.2d at 742), Report and Recommendation adopted by 2018 WL 4205477 (D.S.C. Sept. 4, 2018). Under the South Carolina Administrative Procedures Act (“SCAPA”) and the South Carolina Appellate Court Rules, an inmate dissatisfied with a decision by the SCALC may seek judicial review in the South Carolina Court of Appeals (with appeal of an undesirable Court of Appeals decision to the South Carolina Supreme Court). Id. (internal citations omitted). In light of the foregoing, under Al-Shabazz, a petitioner must exhaust his administrative remedies through the SCDC grievance process, the SCALC, and the South Carolina appellate courts before he brings a petition for federal habeas review of his sentence calculation. Id. (citing Al-Shabazz, 527 S.E.3d at 752-57; 28 U.S.C. § 2254(b)(1)(A)).
Here, presuming, arguendo, that the petitioner exhausted the grievance process at SCDC, there is no indication that he filed an action with the SCALC challenging the grievance determination (or further appealed the SCALC's decision). Publicly available dockets for the South Carolina appellate courts do not reflect any attempt by the petitioner to challenge SCDC's calculation of his sentence. See South Carolina Appellate Case Management System, https://ctrack.sccourts.org/public/publicActorSearch.do (enter the petitioner's SCDC inmate number) (last visited April 18, 2022). Instead, it appears that the petitioner filed a PCR action. See Sumter County Public Index (enter the petitioner's name and 2021CP4301600) (last visited April 18, 2022). However, not only is the PCR action pending (with no final determination for this court to review), it is a “credits-related issue[]” not properly raised in a PCR action pursuant to Al-Shabazz. Al-Shabazz, 527 S.E.2d at 749-50 (recognizing “credits-related issues” as administrative matters not properly raised in a PCR action). In light of the foregoing, the undersigned recommends dismissing the instant petition without prejudice because the petitioner has failed to exhaust his state court remedies.
The petitioner's filings in the South Carolina appellate courts do not contain a consistent spelling for the petitioner's first name; however, his cases can be accessed by searching his SCDC inmate number.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2254 petition be dismissed without requiring the respondent to file an answer or return. The attention of the parties is directed to the important notice on the next page.
The petitioner cannot cure the deficiencies noted herein at this time; however, dismissal without prejudice is recommended because the Court of Appeals has held that dismissals for lack of subject-matter jurisdiction must be without prejudice. S. Walk at Broadlands Homeowner's Assn v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
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, Room 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).