Opinion
C/A No.: 5:18-3425-HMH-KDW
08-07-2019
Kendris Richard Brown, Petitioner, v. Willie D. Davis, Warden of Kirkland Reception and Evaluation Center, Respondent.
REPORT AND RECOMMENDATION
Kendris Richard Brown ("Petitioner") is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion to Dismiss. ECF Nos. 56, 57. On May 29, 2019, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Motion to Dismiss, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 58. On June 21, 2019, Petitioner filed a Response in Opposition to Respondent's Motion to Dismiss. ECF No. 61.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion to Dismiss, ECF No. 57, be granted, and this Petition be dismissed.
I. Background
Petitioner is currently incarcerated in the Kirkland Correctional Institution of the South Carolina Department of Corrections. On April 5, 2013, Petitioner appeared before Judge Michael G. Nettles for a plea hearing. App. 1-26. According to the facts presented by the solicitor, Petitioner and his co-defendants went to the home of the victim to rob him. App. 7-8. After the group entered the home, Petitioner went to the back bedroom and shot the victim five times. App. 9, 13. Petitioner entered a guilty plea to first degree burglary and murder. App. 13-17. Judge Nettles sentenced Petitioner to life. App. 26-27. Petitioner was 15 at the time of the incident and 16 on the date of the sentencing. App. 25. Petitioner did not file a direct appeal. ECF No. 56-6 at 52.
II. Procedural History
Petitioner filed an application for Post-Conviction Relief ("PCR") on January 10, 2014. (2014-CP-21-75). App. 29-34. Petitioner asserted he was being held in custody unlawfully for: "Applicant's sentence of life without parole imposed for a crime he committed when he was a juvenile violates the Eighth Amendment to the U.S.C No Evidence []." App. 31. On November 10, 2015, Petitioner filed an amendment to his PCR application in which he alleged ineffective assistance of counsel concerning counsel's failure to advise him of possible sentences, evidence, and procedures of trial that resulted in an unintelligent and unknowing decision to plead guilty. App. 90-91. A motion hearing convened on November 9, 2016, before the Honorable D. Craig Brown. App. 49-88. Petitioner was present and represented by Attorney Jonathan Waller, and Assistant Attorney General Lindsey A. McCallister, appeared on behalf of the State. See id. The PCR court denied and dismissed Petitioner's PCR Application with prejudice in an order filed on December 30, 2016. App. 92-101.
Appellate Defender Wanda H. Carter, who represented Petitioner on the appeal from the denial of his PCR, filed a Petition for Writ of Certiorari in the South Carolina Supreme Court on November 6, 2017. ECF No. 56-7. The petition presented the following issue: "Trial counsel erred in failing to object to petitioner's life sentence for his burglary conviction because this violated the Eighth Amendment" Id. at 3. On September 21, 2018, the South Carolina Supreme Court denied the Petition for Writ of Certiorari. ECF No. 56-8. The remittitur was issued on October 10, 2018. ECF No. 56-9.
While Petitioner's PCR application was pending, Petitioner filed a motion for resentencing in state court on July 6, 2016. ECF No. 56-2. On July 11, 2016, the South Carolina Supreme Court issued an order vesting state court Judge DeAndrea G. Benjamin with exclusive jurisdiction over Petitioner's Motion for Resentencing. ECF No. 56-3. On August 22, 2016, Judge Benjamin appointed the Florence County Public Defender to represent Petitioner in all matters related to his resentencing motion. ECF No. 56-4. Petitioner's resentencing motion is currently pending. ECF No. 56-5.
Petitioner filed his habeas petition on December 13, 2018, which he amended on May 1, 2019. ECF Nos. 1, 53.
III. Discussion
A. Federal Habeas Issues
Petitioner raises the following issues in his Amended Federal Petition for a Writ of Habeas Corpus, quoted verbatim:
| Ground One: | Violation of 6th amendment, ineffective assistance of counsel.Supporting Facts: Counsel failed to prepare a defense |
|---|---|
| Ground Two: | Violation of 6th amendmentSupporting Facts: Counsel not in court room, Held Predudicial. I'm entitleto a new trial because my counsel was absence during P.C.R. hearing nov9th 2017 Denied my 6th amendment Right to effective assistance ofcounsel. |
| Ground Three: | Violation of 6th amendment |
| Supporting Facts: Appeal not explained; No appeal filed. Lawyerineffective assistance of counsel had deprived me of the opportunity toappeal this state court conviction. Lawyer failed to inform him of my rightto appeal, of the procedures and time limitation for an appeal and his rightto appointed counsel. | |
|---|---|
| Ground Four: | Sentencing information needs to be accurate violation of due process.Violation of 14th amendment.Supporting Facts: Due process requires that a conviction person not besentenced on materially untrue assumptions or misinformation. |
| Ground Five: | Violation of 6th amendmentSupporting Facts: Right to put on a defense and confront witnesses. The 6thamendment guarantees the right of the accused in all criminal prosecutionto be confronted with witnesses against him. |
| Ground Six: | (Competency to stand trial) Violation of due process.Supporting Facts: Constitutional rights were violated because I was triedwhile incompetent and that my due process rights were violated when trialcounsel fail to request a competency hearing. Petitioner is pursueing both aprocedural and substantive incompetency claim. A procedural claim assertsthat the trial court fail to conduct a competency hearing on its own initiativein violation of Pate v. Robinson, 386 U.S. 375, 86 S. Ct. |
IV. Analysis
Respondent moves to dismiss the Amended Petition arguing it would be premature for the court to consider the petition because the finality of Petitioner's sentence has not been reached. ECF No. 56 at 10. Respondent contends that Petitioner's new sentencing hearing may affect his sentence, and therefore the court should refrain from exercising jurisdiction over Petitioner's claim. Id. Respondent asks the court to dismiss Petitioner's petition without prejudice to allow Petitioner's pending state litigation to be completed. Id. at 11. Petitioner opposes Respondent's motion "due to [his] grounds for relief." ECF No. 61.
Generally, a pre-requisite to federal habeas review is exhaustion of claims in state court. 28 U.S.C. § 2254(b). To satisfy this requirement, a petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the [s]tate's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The exhaustion requirement is satisfied when the highest court in the state has been given a full and fair opportunity to rule on the petitioner's claims. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). However, exhausting state remedies is not a precondition to filing a federal habeas petition, but rather a condition that must be fulfilled before relief may be granted. 28 U.S.C. § 2254(c).
The undersigned finds that the court should not consider Petitioner's habeas grounds for relief until Petitioner has been resentenced in state court because Petitioner may elect to pursue additional grounds for habeas relief based on issues that may arise during his resentencing proceedings. A piecemeal approach to judgments of conviction does not serve the court's interest in resolving habeas challenges to state court judgments in one coherent, efficient review. Lewis v. Maine, 254 F. Supp. 2d 159, 164-165 & n.5 (D. Me. 2003); see also, Slocumb v. McKie, C.A. No. 9:10-1605-HMH, 2011 WL 2174974, at *1 (D.S.C. May 12, 2011). Because final judgment has not yet been entered against Petitioner, the undersigned recommends the Amended Petition be dismissed without prejudice. This dismissal will not negatively impact Plaintiff's limitation period. See United States v. Dodson, 291 F.3d 268, 275-76 (4th Cir. 2002) (finding that when a case is remanded for a resentencing hearing, the limitation period does not begin to run until final judgment is entered following that resentencing); Scott v. Hubert, 635 F.3d 659, 664-665 (5th Cir. 2011) (explaining that the question of when a conviction becomes final for federal habeas purposes is purely a question of federal law and final judgment in a criminal case means sentence (the sentence is the judgment)).
V. Conclusion and Recommendation
Therefore, based upon the foregoing, the undersigned recommends that Respondent's Motion to Dismiss, ECF No. 57, be GRANTED and the Petition be DISMISSED WITHOUT PREJUDICE.
IT IS SO RECOMMENDED. August 7, 2019
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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).