Opinion
C/A 3:23-703-JFA-PJG
05-02-2023
Marcus Drayton, Petitioner, v. Warden, Kirkland Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Petitioner Marcus Drayton, a self-represented state prisoner, filed this 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) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.). Having reviewed the Petition in accordance with applicable law, the court concludes that it should be summarily dismissed.
I. Factual and Procedural Background
Petitioner filed this action on a handwritten, self-styled letter that was originally docketed as a civil complaint, but, pursuant to an order of the court, re-docketed as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The pleading was re-docketed because Petitioner indicates he seeks to appeal his January 31, 2023 conviction and sentence in the Richland County Court of General Sessions. Petitioner claims that his state criminal prosecution had several constitutional defects including pre-indictment delay and ineffective assistance of counsel. Petitioner filed a second letter with the court that was docketed in this case in which Petitioner asks the court to dismiss his indictments due to the delay in his prosecution. (ECF No. 11.) This is the fourth case Petitioner filed in this court in the last two years raising issues about his state criminal prosecution. C/A Nos. 22-1545; 22-1990; 22-4442.
The South Carolina Public Index indicates Petitioner pled guilty to numerous charges on January 31, 2023. Case Nos. 2021-A4021600684; 2021-A4021600682; 2020-A4021603449; 2020-A40-21602762; 2020-A40-21601537; 2020-A40-21602905; 2020-A40-21603006; 2021-A40-21603012; 2021-A40-21603012. The court may take judicial notice of Petitioner's state court records. See Fusaro v. Cogan, 930 F.3d 241 n.1 (4th Cir. 2019); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239-40 (4th Cir. 1989).
II. Discussion
A. 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 pursuant to the Rules Governing § 2254 Cases, 28 U.S.C. § 2254; the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104132, 110 Stat. 1214; 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) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
This court is required to liberally construe pro se petitions, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
B. Analysis
The court recommends that this case be summarily dismissed for Petitioner's failure to exhaust his state remedies. A habeas corpus petitioner may obtain relief in federal court only after he has exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990) (holding that “when the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies.”). To exhaust his available state court remedies, a petitioner must “fairly present[] to the state court both the operative facts and the controlling legal principles associated with each claim.” Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks and citation omitted). Thus, a federal court may consider only those issues which have been properly presented to the state appellate courts with jurisdiction to decide them.
Here, Petitioner could not have exhausted his state court remedies because he pled guilty and was sentenced on January 31, 2023. Therefore, Petitioner could not yet have raised his claims to South Carolina's appellate courts, nor could he have yet filed an application for post-conviction relief to raise his ineffective assistance of counsel claims. Though exhaustion is not jurisdictional, Jenkins v. Fitzberger, 440 F.2d 1188, 1189 (4th Cir. 1971); the doctrine is strictly enforced, Thomas v. Eagleton, 693 F.Supp.2d 522, 538 (D.S.C. 2010). Thus, a totally unexhausted petition, such as Petitioner's, should be summarily dismissed sua sponte. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to the petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust.”); Gaines v. Warden, Lee Corr. Inst., C/A No. 4:22-239-MBS-TER, 2022 WL 707158, at *2 (D.S.C. Feb. 3, 2022) (summarily dismissing a § 2254 petition where state PCR action was pending and collecting cases in support), report and recommendation adopted, 2022 WL 706860 (D.S.C. Mar. 9, 2022); Kreis v. Lewis, C/A No. 0:18-750-TLW-PJG, 2018 WL 3737911, at *2 (D.S.C. Mar. 30, 2018) (summarily dismissing an § 2254 petition while state PCR action was still pending), report and recommendation adopted, 2018 WL 3729749 (D.S.C. Aug. 6, 2018). To the extent Petitioner seeks to appeal his conviction and sentence, he must do so in South Carolina's appellate courts.
III. Conclusion
Accordingly, the court recommends that the instant Petition for writ of habeas corpus be dismissed without prejudice and without requiring the Respondent to file a return.
Petitioner continues to file cases relating to his state charges, and now state conviction, asking this court to intervene in his state criminal prosecution. Petitioner was warned by the court previously that this court cannot consider habeas corpus claims from a state court until Petitioner has exhausted his state remedies. If Petitioner continues to file frivolous cases in this court, Petitioner may lose the ability to file cases in forma pauperis or risk other filing sanctions. See 28 U.S.C. § 1915(g) (“In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”); Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812 (4th Cir. 2004) (providing courts have the authority to limit filings of litigants who file repetitive cases).
The Petitioner is directed to 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 901 Richland Street Columbia, South Carolina 29201
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).