Opinion
C/A No. 9:18-2562-HMH-BM
11-26-2018
Billy Leon Alford, Petitioner, v. State of South Carolina, Respondent.
REPORT AND RECOMMENDATION
The pro se Petitioner, Billy Leon Alford, brings this application for writ of habeas corpus (Petition) pursuant to 28 U.S.C. § 2254. 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 pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. 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); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se petitions are also held to a less stringent standard than those drafted by attorneys, and a federal district court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980)(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978) (citing Rice v. Olson, 324 U.S. 786, 791-92 (1945); Holiday v. Johnston, 313 U.S. 342, 350 (1941)).
Nonetheless, 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 the Rules Governing Section 2254 Cases in the United States District Courts. 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. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Such is the case here.
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
Discussion
Petitioner is challenging his November 2011 conviction in Horry County on the charge of second degree assault and battery. See Petition, ECF No. 1 at 1. He requests that his charge be removed from his record and that the Horry County Public Defender's Office be criminally charged for allegedly giving him a fake copy of his phone statement that he asserts "forced" him to plead guilty. Additionally, he requests monetary damages. Id. at 15. Records from Horry County indicate that Petitioner pled guilty to the charge of assault and battery, second degree (2011-GS-26-02121) and was sentenced to a term of eighteen months, suspended to time served, on November 9, 2011. See Horry County Fifteenth Judicial Circuit Public Index, https://publicindex.sccourts.org/Horry/PublicIndex/CaseDetails.aspx?County=26&CourtAgency=26001&Casenum=I218434&CaseType=C&HKey=898278841171101189997108905752100121106774310612276102671007899102567011111673114801021221194711582746685 (last visited Nov. 19, 2018).
Fundamentally, a habeas proceeding under either § 2241 or § 2254 "is an attack by a person in custody upon the legality of that custody, and ... the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Thus, a traditional habeas petition challenges the "fact or duration" of physical confinement and seeks either immediate or speedier release from that confinement. Id. at 498. Here, Petitioner is not entitled to § 2254 habeas relief because he has not shown that he is "in custody" on the challenged sentence. The "in custody" requirement necessitates "the habeas petitioner be 'in custody' under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-91 (1989); see Leonard v. Hammond, 804F.2d 838, 842 (4th Cir. 1986)[petition filed pursuant to 28 U.S.C. § 2254]. Here, Petitioner has completed his eighteen-month sentence. He admits he was sentenced to "18 months-Time served". ECF No. 1 at 1.
Additionally, Petitioner lists his current address as what appears to be a private address in Myrtle Beach and not a South Carolina Department of Corrections facility or local detention center.
The word "custody" usually "'signifies incarceration or supervised release, but in general it encompasses most restrictions on liberty resulting from a criminal conviction.'" Zolicoffer v. U.S. Dep't of Justice, 315 F.3d 538 (5th Cir. 2003) (quoting Pack v. Yusuff, 218 F.3d 448, 454 n. 5 (5th Cir. 2000)). However, a person who files a habeas petition after he has fully served his sentence is not "in custody" for purposes of a federal court's subject matter jurisdiction, and a habeas petition filed by such a person is properly denied. De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 19901: see also Lefkowitz v. Fair, 816 F.2d 17, 20 (1st Cir. 1987)[habeas petition filed after an individual's unconditional release from prison properly denied by the district court]. As noted above, Petitioner was sentenced in November 2011 to an eighteen month sentence suspended to time served. Hence, while the "in custody" requirement has been broadened to include other types of restraint on liberty, such as probation and parole, Wilson v. Flaherty, 689 F.3d 332, 336 (4th Cir. 2012), Petitioner provides no facts in the pleading to demonstrate that he is "in custody" as to the conviction he challenges. As Petitioner has not shown that he is "in custody" pursuant to § 2254, it is recommended that this action be dismissed for lack of subject matter jurisdiction.
As noted above, Petitioner requests that criminal charges be filed against the Horry County Public Defender's Office. However, an individual such as the Petitioner here has no constitutional right to, or in fact any judicially cognizable interest in, the criminal prosecution or non-prosecution of another person. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)[A private citizen does not have a judicially cognizable interest in the prosecution or nonprosecution of another person]: Diamond v. Charles, 476 U.S. 54, 64-65 (1986) [applying Linda R.S. v. Richard D. and collecting cases]; Collins v. Palczewski, 841 F.Supp. 333, 340 (D.Nev. 1993) ["Long ago the courts of these United States established that 'criminal statutes cannot be enforced by civil actions.'"].
Additionally, the habeas statutes do not authorize monetary damages, such that Petitioner's request for money is not available in this action. See Preiser v. Rodriguez, 411 U.S. at 494 (1973)["If a state prisoner is ... attacking something other than the fact or length of his confinement, and he is seeking something other than immediate or more speedy release," his cause of action falls outside the "the traditional purpose of habeas corpus."]; McKinney-Bey v. Hawk-Sawyer, No. 03-6455, 69 F. App'x 113 (4th Cir. May 29, 2003)[Affirming dismissal of claim for monetary damages in a habeas action because "such relief is not available under 2241"]; Littlejohn v. South Carolina, No. 10-745-RBH-WMC, 2010 WL 1664889, at *2 (D.S.C. Apr. 2, 2010)["Monetary damages are not available in habeas corpus action."].
Recommendation
Accordingly, it is recommended that the Petition in this action be dismissed without prejudice and without requiring Respondent to file a return.
Petitioner's attention is directed to the important notice on the next page.
/s/_________
Bristow Marchant
United States Magistrate Judge November 26, 2018
Charleston, South Carolina
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).