Opinion
C. A. 8:22-cv-3923-TMC-JDA
11-22-2022
Thomas Mitchell Stutts, Petitioner, v. Warden Williams,[1] Respondent.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE.
Thomas Mitchell Stutts (“Petitioner”), proceeding pro se, brings this habeas corpus action purportedly under 28 U.S.C. § 2241. Petitioner is a prisoner in the custody of the South Carolina Department of Corrections (“SCDC”) and is presently incarcerated at the Perry Correctional Institution. [Doc. 1 at 1.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Judge. For the reasons below, this action is subject to summary dismissal.
BACKGROUND
Petitioner commenced this action on November 3, 2022, by filing a petition for habeas corpus pursuant to 28 U.S.C. § 2241 on the standard court form (the “Petition”) [Doc. 1] as well as a copy of a prison disciplinary report [Doc. 1-1]. Petitioner contends he was sentenced on May 29, 1997, in the Lexington County Court of General Sessions at case number 94-GS-32-2065. [Doc. 1 at 1.]
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on November 3, 2022. [Doc. 1-3 at 1 (envelope stamped as being received by the Perry Correctional Institution mailroom on Nov. 3, 2022).]
The Court takes judicial notice of Petitioner's state court records as well as his prior actions filed in this Court. See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
The Petition contains numerous pages of handwritten notes that are difficult to decipher. However, the undersigned is able to glean the following allegations pertinent to the Court's review at this stage. Petitioner contends he is challenging certain prison disciplinary proceedings. [Id. at 2.] Specifically, he contends that he was sanctioned without a conviction in violation of his due process rights. [Id.] Petitioner contends that he was placed in lock up without first going to a hearing officer to review video footage of the incident for which he was sanctioned. [Id.] Petitioner contends he had a first hearing that was dismissed with no sanctions imposed followed by a second hearing that was dismissed but with the following sanctions imposed: 25 days in lock up and the loss of canteen privileges, visitation privileges, and phone privileges for 70 days. [Id.] Petitioner contends that both hearings occurred on September 8, 2022, and that the imposed sanctions are illegal, unconstitutional, and unconscionable because they were imposed without a conviction and constitute double jeopardy. [Id.] Petitioner appears to assert nine grounds [ id. at 6-10] and nineteen requests for relief [ id. at 7, 11-14].
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 28 U.S.C. § 1915, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. 104-132, 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); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
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, Rules Governing Section 2254 Cases in the U.S. District Courts (2012). Pursuant to this rule, a district court is “authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994).
The Rules pertaining to § 2254 proceedings are also applicable to cases brought pursuant to § 2241. See Rule 1(b), Rules Governing Section 2254 Cases in the United States District Courts.
Because Petitioner is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However, even under this less stringent standard, the Petition 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
DISCUSSION
As noted, Petitioner appears to challenge the validity of sanctions resulting form prison disciplinary proceedings, and he seeks habeas relief purportedly under 28 U.S.C. § 2241. Nevertheless, the habeas Petition filed in this case should be construed as an action filed pursuant to § 2254 and dismissed as successive and for failure to state a claim.
The Petition should be construed as filed pursuant to § 2254
As an initial matter, the undersigned concludes that this action should be construed as filed pursuant to § 2254 rather than § 2241. Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Two statutes potentially provide Petitioner an avenue for federal habeas relief-28 U.S.C. § 2241 and 28 U.S.C. § 2254. Under § 2241, a federal court may issue a writ of habeas corpus to a state prisoner if the prisoner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(a), (c)(3). Similarly, under § 2254, a federal court may issue a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Thus, both § 2241 and § 2254 appear to provide this Court with jurisdiction to consider Petitioner's federal habeas Petition.
Although circuit courts are split on whether § 2241 or § 2254 is the proper statute under which a state inmate should proceed when challenging the execution of his state sentence, “[t]he majority view is that § 2254 is the exclusive vehicle for habeas corpus relief by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not challenging his underlying conviction.... The Fourth Circuit noted the split of authority in Gregory v. Coleman, [218 Fed.Appx. 266 (4th Cir. 2007)], but does not appear to have taken a definitive stance to date.” Cranford v. Warden, Manning Corr. Inst., No. 6:12-cv-00590-JMC-KFM, 2012 WL 5986771, at *1 (D.S.C. Mar. 21, 2012), Report and Recommendation adopted by 2012 WL 5986744 (D.S.C. Nov. 29, 2012) (emphasis added) (citations omitted); see also Hao Qing Zhan v. Wilson, No. 8:12-cv-03052-RBH, 2013 WL 4500055, at *5 (D.S.C. Aug. 19, 2013) (collecting cases). Nevertheless, in this District, “[i]t has been specifically held that prisoners who are in custody under a state court judgment, like Petitioner here, may not resort to § 2241 in an attempt to circumvent the procedural requirements of § 2254 such as the statute of limitations and the restrictions on second or successive petitions.” Alston v. Warden, Lieber Corr. Inst., No. 6:07-cv-2724-RBH, 2008 WL 5115044, at *3 (D.S.C. Dec. 4, 2008); see also Harley v. South Carolina, No. 9:07-cv-1750-DCN-GCK, 2007 WL 2579444, at *2 (D.S.C. Sept. 4, 2007) (Petitioner “cannot evade the procedural requirements of 28 U.S .C. § 2254 by filing an action purporting to be a § 2241 petition.”).
Accordingly, “[b]ecause Petitioner is in custody pursuant to a state court judgment . . . his habeas corpus petition [is] properly construed as a § 2254 petition.” Sabb v. South Carolina, No. 9:06-cv-1943-RBH, 2008 WL 701387, at *2 (D.S.C. Mar. 13, 2008) (collecting cases). As a result, the Petition is governed by AEDPA and is subject to dismissal as an unauthorized successive petition.
The Petition is successive
Although § 2254 is the appropriate vehicle for Petitioner to challenge his state conviction and sentence, relief under the statute is unavailable to Petitioner because the instant action is an unauthorized successive petition. Petitioner previously filed a habeas action pursuant to § 2254 at case number 8:11-cv-0191, and this Court dismissed that action on September 28, 2012, granting summary judgment to the Respondent. See Stutts v. Stevenson, 8:11-cv-0191-TMC (D.S.C. Sept. 28, 2012), Doc. 119 (adopting the Report and Recommendation at Doc. 108).
On April 24, 1996, the AEDPA amended 28 U.S.C. § 2254 and other habeas statutes. Specifically,
[t]he AEDPA effected a number of substantial changes regarding the availability of federal postconviction relief to individuals convicted of crimes in federal and state courts. Of particular importance here are the provisions of the AEDPA codifying and extending judicially constructed limits on the consideration of second and successive applications for collateral relief. Under the AEDPA, an individual may not file a second or successive § 2254 petition for a writ of habeas corpus or § 2255 motion to vacate sentence without first receiving permission to do so from the appropriate circuit court of appeals.In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (footnote omitted) (citing Felker v. Turpin, 518 U.S. 651 (1996)). The “gatekeeping” mechanism created by the AEDPA amended § 2244(b) to provide:
The prospective applicant must file in the court of appeals a motion for leave to file a second or successive habeas application in the district court. § 2244(b)(3)(A). A three-judge panel has 30 days to determine whether “the application makes a prima facie showing that the application satisfies the requirements of” § 2244(b).Felker, 518 U.S. at 657 (citing § 2244(b)(3)(c); §§ 2244(b)(3)(B), (D)).
To be considered “successive,” the second or subsequent petition must be an attack on the same conviction attacked in the first petition, and the first petition must have been adjudicated on the merits. See In re Williams, 444 F.3d 233, 236 (4th Cir. 2006). Here, the petition at case number 8:11-cv-0191 was dismissed on the merits, making the present Petition successive for purposes of 28 U.S.C. § 2244(b).
Section 28 U.S.C. § 2244(b)(2) provides that, in some circumstances, a petitioner may bring a second or successive § 2254 action. That statute permits a court of appeals to determine whether to authorize a successive petition. Thus, the United States Court of Appeals for the Fourth Circuit-not this District Court-is the proper tribunal to decide whether to authorize a successive § 2254. See United States v. Winestock, 340 F.3d 200, 205-06 (4th Cir. 2003). Because it appears that Petitioner did not obtain authorization from the Fourth Circuit Court of Appeals to file the instant Petition, this Court does not have jurisdiction to consider it. Id.
Petitioner has failed to exhaust his state court remedies
Additionally, even if this Petition is not considered a successive habeas action under § 2254 or if it should be considered instead as a Petition under § 2241, it appears to the Court that Petitioner has failed to exhaust his state court remedies. A state prisoner seeking habeas relief ordinarily “must exhaust his remedies in state court” and must “give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts.” O'Sullivan v. Boerckel, 526 U.S. 838, 842, 845 (1999); see 28 U.S.C. § 2254(b) (explaining the exhaustion requirement).
“Exhaustion is statutorily required by 28 U.S.C. § 2254; whereas, when a petition for writ of habeas corpus is brought by a state prisoner pursuant to 28 U.S.C. § 2241, the exhaustion of state remedies is a judicially created requirement.” Clayton v. Doby, No. 8:16-cv-2851-RBH-JDA, 2016 WL 5419456, at *2 (D.S.C. Aug. 22, 2016), Report and Recommendation adopted by 2016 WL 5390333 (D.S.C. Sept. 27, 2016).
South Carolina law provides that, as to certain prison administrative decisions that affect an inmate's sentence, the inmate may seek review of an SCDC decision from the South Carolina Administrative Law Court. See Al-Shabazz v. State of South Carolina, 527 S.E.2d 742, 750 (S.C. 2000); see also Slezak v. South Carolina Dep't of Corr., 605 S.E.2d 506, 507 (S.C. 2004). These issues include situations where an inmate is disciplined and punishment is imposed, or when an inmate believes that prison officials have erroneously calculated his sentence, sentence-related credits, or custody status. Sullivan v. South Carolina Dep't of Corr., 586 S.E.2d 124, 126 (S.C. 2003); Al-Shabazz, 527 S.E.2d at 750. Pursuant to the South Carolina Administrative Procedures Act (“APA”) and the South Carolina Appellate Court Rules, an inmate who is dissatisfied with the decision of the Administrative Law Court may seek judicial review from the South Carolina Court of Appeals, and, ultimately, the South Carolina Supreme Court. See S.C. Code Ann. § 1-23-610; Rule 242, SCACR. Accordingly, Petitioner's exhaustion of state remedies begins with the administrative grievance procedure of SCDC and review by the South Carolina Administrative Law Court as outlined in Al-Shabazz, with appeal to the state appellate courts. Al-Shabazz, 527 S.E.2d at 752-57 (discussing the application of the APA and the review process); Rule 203(b)(6), SCACR; see also S.C, Code Ann. § 1-23-610(A)(1).
On the other hand, to exhaust state court remedies in South Carolina from a criminal conviction or sentence a different process applies. First, a direct appeal may be pursued. See State v. Northcutt, 641 S.E.2d 873 (S.C. 2007). If a direct appeal was filed and is ultimately unsuccessful (or if no direct appeal was filed), a petitioner may file a PCR application in a court of common pleas. See S.C. Code § 17-27-10, et seq. (1976); see also Miller v. Harvey, 566 F.2d 879, 880-81 (4th Cir. 1977) (noting that South Carolina's Uniform Post-Conviction Procedure Act is a viable state court remedy). If a South Carolina prisoner's PCR application is denied or dismissed by a court of common pleas, a petitioner can file a request for writ of certiorari with a South Carolina appellate court. See S.C. Code § 17-27-100; Knight v. State, 325 S.E.2d 535 (S.C. 1985). In fact, if a petitioner's PCR application is denied by a court of common pleas, the petitioner must seek appellate review in the state courts or federal collateral review of the grounds raised in his PCR application may be barred by a procedural default. See Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (finding that exhaustion requires state prisoners to complete at least one complete round of the state's established appellate review process by presenting the ground for relief in a face-up and square fashion).
Here, there is no indication that Petitioner has exhausted these state court remedies. Critically, “Petitioner fails to allege that he has filed any motions in state court concerning the issues presented in this case.” Dixon v. Dir., Spartanburg Cnty. Jail, No. 1:13-cv-1215-TMC, 2013 WL 3050249, at *3 (D.S.C. June 14, 2013). As such, the Petition is subject to dismissal on this basis. See, e.g., Bennett v. MacDougall, No. 8:11-cv-01437-TMC, 2012 WL 768127, at *1 (D.S.C. Mar. 7, 2012) (summarily dismissing petition for failing to exhaust and noting that “before a state prisoner can seek federal habeas relief under § 2241, he must first exhaust any state court remedies that may be available”) (discussing exhaustion of state court remedies and collecting cases); Gilliard v. Taylor, No. 14-cv-2749-TMC, 2015 WL 4095627, at *7 (D.S.C. July 6, 2015) (“A state prisoner is generally barred from obtaining federal habeas relief unless he has properly presented his or her claims through one complete round of the State's established appellate review process.”).
Failure to state a claim
Finally, the undersigned notes that Petitioner has failed to state a claim for relief. Although habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody, in this case, Petitioner is not challenging the legality or duration of his custody. Instead, Petitioner complains that his prison disciplinary conviction, which resulted in disciplinary lockup and the loss of canteen, phone, and visitation privileges, was allegedly unconstitutional and illegal. Thus, the crux of Petitioner's claim is that he was denied due process in his disciplinary proceedings.
Inmates retain rights under the Due Process Clause of the United States Constitution, “subject to the restrictions imposed by the nature of the regime to which they have been lawfully committed.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). However, a due process claim is cognizable only when a recognized liberty interest is at stake. Board of Regents v. Roth, 408 U.S. 564, 569-570 (1972). Liberty interests protected by the Due Process Clause are generally limited to freedom from restraint which imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). It is well settled that prisoners have no protected liberty interest in any commissary, phone, or visitation privileges-such as those that are the subject of the instant Petition-lost as a result of a disciplinary conviction. See Madison v. Parker, 104 F.3d 765, 768 (5th Cir.1997); Pierre v. Ozmint, No. 3:09-cv-226-CMC-JRM, 2010 WL 679946 at *7 (D.S.C. Feb. 24, 2010) (stating that canteen access is not a protected liberty interest).
The instant Petition fails to demonstrate that Petitioner's disciplinary conviction enhanced his sentence in such a way as to implicate a protected liberty interest and give rise to the protection of the Due Process Clause. See Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997). Nor does Petitioner demonstrate that his loss of commissary, phone, and visitation privileges imposed an atypical and significant hardship. In any case, the loss of such privileges sound in claims under § 1983. See, e.g., Rochester v. McCall, 442 Fed.Appx. 834, 835 (4th Cir. 2011) (“[C]laims of denial of mail and phone privileges . . . sound under 42 U.S.C. § 1983.”). Thus, Petitioner fails to state a cognizable claim under any habeas statute-whether this action is construed as filed under § 2254 or § 2241. See, e.g., Hewlett v. Goode, No. 7:20-cv-00494, 2020 WL 6136849, at *2 (W.D. Va. Oct. 19, 2020) (explaining claims challenging prison disciplinary sanctions “are not proper habeas claims at all, because granting relief on those claims would not necessarily mean that the duration of [a prisoner's] sentence should be shortened”); Mitchell v. Entzel, No. 1:19-cv-10, 2020 WL 523264, at *8 (N.D. W.Va. Jan. 9, 2020) (“Petitioner's other sanctions, including the 30 days of disciplinary segregation, loss of commissary, phone, and visitation privileges, do not involve a liberty interest because they do not impact the length of his confinement. Therefore, they do not state a claim for relief.”), Report and Recommendation adopted by 2020 WL 522143 (N.D. W.Va. Jan. 31, 2020).
Petitioner may be able to seek redress for his constitutional claims pursuant to 42 U.S.C. § 1983, which provides relief for civil rights violations. A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012) (quoting 42 U.S.C. § 1983). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). However, Petitioner expressly states that he is not seeking relief pursuant to § 1983. [Doc. 1 at 7 (“Plaintiff understands that this Petition is NOT a ‘civil action' under 42 USCA § 1983.” (emphasis in original))] Therefore, because Petitioner brought this action through a petition for writ of habeas corpus, the Court considers only whether the Petition is proper under § 2241 or § 2254 of the habeas statutes. The Court expresses no opinion as to whether Petitioner alternatively could seek relief under § 1983.
RECOMMENDATION
Accordingly, for all of the foregoing reasons, it is recommended that this action be dismissed without prejudice and without requiring the Respondent to file an answer or return.
IT IS SO RECOMMENDED.
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
250 East North Street, Suite 2300
Greenville, South Carolina 29601
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).