Opinion
C/A No. 3:05-2789-RBH.
November 29, 2005
ORDER
Petitioner, Gladstone Cummings, a state prisoner who is proceeding pro se, filed this § 2254 habeas corpus petition on September 27, 2005.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Joseph R. McCrorey for pretrial handling. After a review of the case, the Magistrate Judge filed a Report and Recommendation on September 28, 2005, in which he finds that the petitioner has not exhausted his state court remedies. The Magistrate Judge notes that the petitioner's Complaint and exhibits reveal that a Post-Conviction Relief ("PCR) application has been pending in state court since 2004, with one interlocutory appeal to the South Carolina Supreme Court. Further, the Magistrate Judge points out that the petitioner's exhibits reveal that the appeal was dismissed and the action was returned to the state PCR court in April, 2005. Finally, the Magistrate Judge notes that the petitioner himself reports that the PCR proceeding is still pending. Therefore, the Magistrate Judge concludes that this petition should be dismissed without prejudice and without requiring the respondents to file an answer. The petitioner timely filed objections to the Report and Recommendation on November 3, 2005.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this Court.Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of any portions of the Report and Recommendation to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of objections to the Report and Recommendation, this Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
In the petitioner's objections he states that he did in fact file a PCR application in state court in 2004. The petitioner also points out that he filed a motion for summary judgment in that case. Petitioner notes that his motion for summary judgment was denied and he appealed that decision to the South Carolina Supreme Court. The petitioner notes that the South Carolina Supreme Court dismissed his appeal. Therefore, the petitioner argues in his objections that a final judgment was rendered and his PCR application was summarily dismissed. For this reason, the petitioner essentially argues that he has satisfied the exhaustion of state court remedies requirement of 28 U.S.C. § 2254(b)(1)(A).
Alternatively, it appears that the petitioner argues that pursuant to 28 U.S.C. § 2254(b)(1)(B)(ii) the exhaustion requirement is unnecessary because the state corrective process is ineffective to protect his rights. In support of this argument, the petitioner contends that he "was entitled as a course of action to have this matter redressed by the Supreme Court. . . ." Therefore, the petitioner argues that it is proper for this Court to entertain his petition for habeas corpus relief.
After reviewing the petitioner's objections, it appears to this Court that the petitioner is confused on the issue of his state PCR application being dismissed. As mentioned above, the petitioner argues in his objections to the Magistrate Judge's Report that "[a] final judgment denying the PCR Application was forthwith by the court by written order dated January 31st, 2005." After reviewing the PCR court's order which the petitioner references, it appears to this Court that the PCR court did not deny his PCR application, but only his motion for summary judgment. Therefore, this Court finds that any argument the petitioner may make in his objections that he has exhausted his state court remedies because his PCR application was dismissed is without merit.
This Court also finds that the petitioner's argument that the exhaustion requirement is unnecessary because the state corrective process is ineffective to protect his rights is also without merit. In this objection, the petitioner essentially argues that South Carolina Supreme Court did not adequately address his appeal of the PCR court's summary dismissal of his PCR application. However, as explained above, the PCR court did not dismiss his PCR application, it only denied his motion for summary judgment. Therefore, this Court finds that the South Carolina Supreme Court's dismissal of his appeal would not be evidence of an ineffective state corrective process. Such is evident from the South Carolina Supreme Court's Order itself, which states:
[p]etitioner has filed a notice of appeal from an order denying his motion for summary judgment. In post-conviction relief cases, this Court will only review final decisions. Rule 227(a), SCACR; Rule 71.1(g), SCRCP. Since the order on appeal is not the final decision in this matter, the notice of appeal is dismissed without prejudice.
This Court notes, as the Magistrate Judge did in his Report, that the Fourth Circuit Court of Appeals ruled in Cinema Blue of Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 50-53 (4th Cir. 1989), 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. Therefore, after thoroughly reviewing and considering the petitioner's objections this Court finds they are without merit and therefore are hereby overruled. The Court agrees with the Magistrate Judge's determination that at this time federal habeas corpus relief is not available to the petitioner.
The Court will note that the petitioner admits in his objections to the Magistrate Judge's Report that after the South Carolina Supreme Court dismissed his appeal regarding the denial of his summary judgment motion, it remitted the case to the lower court on April 25, 2005, and that his application is still pending in that court.
For the reasons stated above, this Court adopts the Report and Recommendation as modified by this Order and incorporates it herein by reference. Accordingly, this case is hereby DISMISSED without prejudice and without requiring the respondents to file an answer.
AND IT IS SO ORDERED.