Opinion
C/A No. 2:12-2058-RMG-BHH
08-06-2012
Kristopher W. Berry, #347006, Petitioner, v. Warden of Evans Correctional Institution, Respondent.
Report and Recommendation
Petitioner Kristopher W. Berry ("Petitioner"), proceeding pro se, brings this action pursuant to 28 U.S.C. § 2254 for habeas relief. Petitioner is an inmate at Evans Correctional Institution, a facility of the South Carolina Department of Corrections (SCDC). Petitioner herein challenges his 2011 Darlington County conviction and sentence. However, Petitioner reports that this conviction is the subject of pending litigation in state court. This Petition is therefore subject to summary dismissal.
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.
Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case. The review was conducted pursuant to the procedural provisions of the Rules Governing Habeas Corpus Cases Under Section 2254 and the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996, 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, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979). This Court is required to construe pro se petitions liberally. Such pro se petitions are held to a less stringent standard than those drafted by attorneys, see Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978), 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); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, however, the Petition submitted in the above-captioned case 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. See Weller v. Department of Social Servs., 901 F.2d 387 (4th Cir. 1990).
Background and Discussion
Petitioner was convicted on a criminal solicitation of a minor charge and sentenced to a five-year term of incarceration July 21, 2011 in Darlington County. ECF No. 1 at 1. He reports that he appealed from the judgment of conviction, and is "still awaiting appeal briefing." ECF No. 1at 2. He further states that a motion for a new trial is still pending in state court. ECF No. 1 at 4-5. It appears from his Petition that Petitioner has not filed an application for Post-Conviction Release (PCR) or exhausted the appeals process. Question # 13 of Form AO-240 (Petitioner Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody) reads: "Have all grounds for relief that you have raised in this petition been presented to the highest state court having jurisdiction?" Petitioner answers "no." ECF No. 1 at 12.
Federal habeas law requires exhaustion of state remedies before a petitioner can pursue habeas relief:
(b)(1) An 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--28 U.S.C. § 2254. It is clear that Petitioner has not exhausted his state court remedies.
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
Additionally, absent extraordinary circumstances, federal district courts are not authorized to interfere with a state's pending proceedings. See, e.g., Younger v. Harris, 401 U.S. 37, 44 (1971); and Cinema Blue of Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 50-53 (4th Cir. 1989). In Cinema Blue, the United States Court of Appeals for the Fourth Circuit ruled that federal district courts should abstain from constitutional challenges to state judicial proceedings, no matter how meritorious, if the federal claims have been or could be presented in an ongoing state judicial proceeding. Cinema Blue at 52. See also Bonner v. Circuit Court of St. Louis, 526 F.2d 1331 (8th Cir. 1975)(en banc). In Bonner v. Circuit Court of St. Louis, the United States Court of Appeals for the Eighth Circuit pointed out that federal constitutional claims are cognizable in both state courts and in federal courts: "Congress and the federal courts have consistently recognized that federal courts should permit state courts to try state cases, and that, where constitutional issues arise, state court judges are fully competent to handle them subject to Supreme Court review." Bonner at 1336.
Conclusion
Accordingly, it is recommended that the § 2254 Petition in the above-captioned case be dismissed without prejudice and without requiring Respondent to file a return. See Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970)(federal district courts have duty to screen habeas corpus petitions and eliminate burden placed on respondents caused by ordering an unnecessary answer or return); and Toney v. Gammon, 79 F.3d 693, 697 (8th Cir. 1996) (a petition may be summarily dismissed if the record clearly indicates that Petitioner's claims are either barred from review or without merit); and the Anti-Terrorism and Effective Death Penalty Act of 1996. Petitioner's attention is directed to the notice on the following page.
Bruce Howe Hendricks
United States Magistrate Judge
August 6, 2012
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:
Larry W. Propes, 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).