Opinion
Case No. 2:20-cv-03974-RMG-MGB
05-13-2021
Cleveland E. Young, #141241, Petitioner, v. Warden of Perry Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Cleveland E. Young, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. No. 1.) Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), the undersigned is authorized to review the petition and submit a recommendation to the assigned United States District Judge. As discussed in greater detail below, the undersigned recommends that the petition be summarily dismissed without prejudice for failure to exhaust available state remedies.
BACKGROUND
In July 2015, Young was indicted by a Union County grand jury for criminal sexual conduct with a minor in the first degree (2015-GS-44-00501) and criminal sexual conduct with a minor in the third degree (2015-GS-44-00913). Young was tried in March 2016 and found guilty of all charges, resulting in consecutive terms of life imprisonment without the possibility of parole. Young filed a timely notice of appeal, which the South Carolina Court of Appeals ultimately dismissed on June 28, 2017. (Case No. 2016-000770.)
The undersigned takes judicial notice of the records filed in Young's underlying state court case, as well as his subsequent appellate actions. See https://publicindex.sccourts.org/union/publicindex/ and https://ctrack.sccourts.org/public/publicActorSearch.do (limiting search fields to Young's name) (last visited May 11, 2021); see also Philips v. Pitt Cty. 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) (noting that courts may take judicial notice of other courts' records and proceedings); Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 F. App'x 965 (4th Cir. Aug. 27, 2009) (noting that the court may also take judicial notice of factual information located in postings on government web sites).
On or around March 19, 2018, Young filed an application for post-conviction relief ("PCR") alleging ineffective assistance of counsel. (Case No. 2018-CP-44-00122.) The PCR court denied Young's application with prejudice by order dated February 7, 2020, and Young filed a petition for writ of certiorari with the South Carolina Supreme Court on September 28, 2020. (Case No. 2020-000367.) In filing said petition, Young's court-appointed counsel indicated that, in her opinion, the appeal was without legal merit and therefore moved to be relieved as counsel pursuant to Johnson v. State, 294 S.C. 310 (1988). Young did not file a response to his attorney's motion to be relieved as counsel within the time period prescribed by the court. On November 24, 2020, the South Carolina Supreme Court transferred Young's PCR appeal to the South Carolina Court of Appeals pursuant to Rule 243(l) of the South Carolina Appellate Court Rules. Based on the current appellate docket, it appears the Court of Appeals has yet to issue a ruling on the denial of Young's application, such that the PCR appeal remains under consideration.
The "Case Status" for Appellate Case No. 2020-000367 is listed as "Ready for Consideration" in the South Carolina Appellate Case Management System. There is no entry under "Disposition Date." See https://ctrack.sccourts.org/public/publicActorSearch.do (limiting search fields to Appellate Case No. 2020-000367) (last visited May 12, 2021).
It is against this procedural background that Young now attempts to challenge his conviction and sentence under 28 U.S.C. § 2241. Specifically, Young claims that his trial counsel was ineffective in failing to challenge the two indictments where there was insufficient evidence to charge Young and the "prosecuting agency" was the sole witness before the grand jury. (Dkt. No. 1 at 6; Dkt. No. 1-3.) Young asks the Court to vacate his sentence and grant him relief from the underlying state court judgment. (Dkt. No. 1-3 at 5.)
STANDARD OF REVIEW
Under the established local procedure in this judicial district, a careful review has been made of Young's pro se 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, Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"); 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); and Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
The narrow question before the Court is whether it "plainly appears" that Young is not entitled to any relief. Rule 4, Rules Governing § 2254 Cases. If so, his petition must be dismissed; if not, the Warden must respond. Id. Because Young is a pro se litigant, his petition is accorded liberal construction. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon, 574 F.2d at 1151. Even under this less stringent standard, however, the Court cannot 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). Such is the case here.
DISCUSSION
I. Recharacterization of Petition Under 28 U.S.C. § 2254
As an initial matter, the undersigned notes that Young seems to challenge the validity of his state conviction and sentence by means of a Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 ("Form AO 242"). (Dkt. No. 1.) Young's claims, however, clearly fall under the purview of 28 U.S.C. § 2254. Indeed, it is well-established in this District that, "regardless of how they are styled, federal habeas petitions of prisoners who are in custody pursuant to the judgment of a State court should be treated as applications under section 2254." In Re Wright, 826 F.3d 774, 779 (4th Cir. 2016); see also United States v. Morgan, 473 F. Supp. 3d 544, 546 (D.S.C. 2020) (noting the longstanding practice of classifying pro se pleadings from prisoners according to their contents, without regard to their captions). Accordingly, the undersigned construes Young's petition as one raised under 28 U.S.C. § 2254.
Notwithstanding Young's filing of Form AO 242, the undersigned notes that his supplemental memorandum references 28 U.S.C. § 2254 as the basis for his claims. (See Dkt. No. 1-3.) Thus, Young may have intended to bring this action under § 2254 in the first instance. However, to the extent there is any confusion on Young's part, the undersigned clarifies, in an abundance of caution, the implications of this Court's recharacterization of his petition.
First, petitions filed pursuant to 28 U.S.C. § 2254 are subject to a successive authorization requirement under § 2244(b)(3), which states that a petitioner must first obtain authorization from the appropriate court of appeals before filing a second or successive § 2254 application. To be considered successive, the second § 2254 habeas petition must be the second attack on the same conviction and/or sentence, and the first § 2254 habeas petition must have been finally adjudicated on the merits. See Griffin v. Padula, 518 F. Supp. 2d 680, 687 (D.S.C. 2007) (referencing Slack v. McDaniel, 529 U.S. 473 (2000)). Although this habeas action appears to be Young's first § 2254 petition, the successive authorization requirement is not triggered because the Court is not adjudicating Young's petition on the merits. As explained in greater detail below, Young's petition is subject to summary dismissal for failure to exhaust his state court remedies. A dismissal based on failure to exhaust is not considered an adjudication on the merits in the habeas corpus context and, thus, the filing of the instant petition will not cause a "second or successive" petition if/when Young brings another § 2254 petition following the completion of his PCR proceedings.
Second, petitions filed pursuant to 28 U.S.C. § 2254 are also subject to a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1) (noting the one-year period of limitation for those applications for a writ of habeas corpus filed by a person in custody pursuant to the judgment of a state court). However, the one-year filing period is tolled during PCR proceedings, which appear to be ongoing in Young's underlying state court matter. See Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999).
Although neither of the aforementioned filing restrictions affect the instant case, the undersigned notes that Young should be aware of and familiarize himself with the limitations provided under 28 U.S.C. § 2244 if he intends to bring a new § 2254 petition following the completion of his state remedies. Young is hereby on notice of said restrictions.
II. Failure to Exhaust
It is well-settled that state prisoners must exhaust all available state-court avenues for challenging their convictions before they seek habeas relief in federal court. See 28 U.S.C. § 2254(b)(1). Indeed, § 2254 generally forbids federal courts from granting collateral relief until prisoners have "fairly presented" their claims in each appropriate state court. Baldwin v. Reese, 541 U.S. 27, 27 (2004); see also Duckworth v. Serrano, 454 U.S. 1, 3 (1981) ("The exhaustion requirement . . . serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights."); Stewart v. Warden of Lieber Corr. Inst., 701 F. Supp. 2d 785, 790 (D.S.C. 2010) (noting that "a federal habeas court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them"). To satisfy his burden, the petitioner must therefore show that both the operative facts and the controlling legal principles were presented to the highest state court. Gordon v. Braxton, 780 F.3d 196, 201 (4th Cir. 2015).
Here, Young's PCR appeal appears to be ongoing, as the matter is still pending before the South Carolina Court of Appeals. And because appellate review of the PCR court's decision is necessary to show exhaustion in South Carolina, Young's federal habeas claims are unexhausted and premature at this stage. See Braveboy v. James, No. 8:20-cv-03486-TMC-JDA, 2020 WL 8713682, at *3 (D.S.C. Nov. 10, 2020), adopted, 2021 WL 423410 (D.S.C. Feb. 8, 2021) (explaining that if a petitioner's PCR application is denied by a court of common pleas, the petitioner must seek appellate review in the state courts); Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (noting that state prisoners must invoke "one complete round of the State's established appellate review process"). The undersigned therefore recommends that Young's habeas petition be dismissed so that he may exhaust his state-court remedies as required under 28 U.S.C. § 2254(b)(1). See, e.g., Goss v. Williams, No. 2:18-cv-2938-BHH, 2020 WL 502635, at *2 (D.S.C. Jan. 31, 2020), appeal dismissed, 814 F. App'x 776 (4th Cir. 2020) (dismissing pro se § 2254 petition for failure to exhaust state remedies where PCR application was still pending before state court); Braveboy, 2020 WL 8713682, at *3 (same); Washington v. Cartledge, No. 4:08-cv-04052-PMD, 2010 WL 1257356, at *2 (D.S.C. Mar. 29, 2010) (same).
CONCLUSION
For the reasons discussed above, the undersigned finds that Young cannot cure the defects in his petition by mere amendment. The undersigned therefore RECOMMENDS that the Court summarily dismiss Young's petition, without prejudice and without requiring Respondent to file a return. Young can refile his § 2254 petition with the Court after he has exhausted his state court remedies. The undersigned again reminds Young to be mindful of the statute of limitations applicable to this action. See 28 U.S.C. § 2244(d).
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE May 13, 2021
Charleston, South Carolina
The parties' attention is directed to an important notice on the following 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 835
Charleston, South Carolina 29402
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).