Opinion
C. A. 6:22-cv-04388-TLW-KFM
01-17-2023
Michael Darnell Thomas, Petitioner, v. Warden Broad River Correctional Institution, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
The petitioner, proceeding pro se and in forma pauperis, brings this action pursuant to 28 U.S.C. § 2254 for habeas relief. 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 is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons set forth below, it is recommended that the petitioner's § 2254 petition be summarily dismissed.
ALLEGATIONS
Petitioner's Conviction and Sentence
The petitioner is currently serving concurrent thirty year sentences after pleading to kidnapping, first degree burglary, and criminal sexual conduct first degree. See Richland County Public Index, https://publicindex.sccourts.org/ Richland/PublicIndex/PISearch.aspx (enter the petitioner's name and 2014A4021600850, 2014A4021600851,2014A4021600853) (last visited January 13, 2023). The petitioner did not file an appeal.
The court takes judicial notice of the records in the petitioner's criminal case in the Richland County General Sessions Court, as well as the petitioner's post-conviction relief actions in the Richland County Court of Common Pleas and other actions in this court brought pursuant to § 2254. See Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (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.'”).
Petitioner's Prior Collateral Attacks in the State Court
The petitioner filed a post conviction relief (“PCR”) action in the Richland County Court of Common Pleas on February 22, 2017. See Richland County Public Index (enter the petitioner's name and 2017-CP-40-00943) (last visited January 13, 2023). In his PCR, the petitioner asserted several grounds for relief, including ineffective assistance of counsel (“IAC”) for failing to investigate the petitioner's mental health or have him evaluated for competency and/or criminal responsibility and involuntary guilty plea. Id. The PCR was denied on October 14, 2020, on the merits. Id. The petitioner appealed, his petition for a writ of certiorari was transferred to the South Carolina Court of Appeals, and the petitioner's petition for a writ of certiorari was denied on August 23, 2022. Thomas v. State of S.C., C/A No. 2020-001492 (S.C. Ct. App.) (remittitur entered in the Richland County Court of Common Pleas on September 26, 2022).
Petitioner's Other Collateral Attacks in this Court
On October 3, 2022, the petitioner filed a federal habeas petition pursuant to 28 U.S.C. § 2254. Thomas v. Jackson, C/A No. 6:22-cv-03410-TLW-KFM (D.S.C.) (hereinafter “Habeas Action Number 1”). In Habeas Action Number 1, the petitioner alleged that his convictions and sentences should be vacated based upon IAC for failure to investigate or interview witnesses as well as because plea counsel did not provide the petitioner with his discovery. Id. at doc. 1 pp. 5-8. On January 11, 2023, an order authorizing service of the petitioner's petition was entered. Id. at doc. 18. To date, Habeas Action Number 1 remains pending.
Petitioner's Present Action
The petitioner then filed the instant action, again seeking habeas relief for his convictions for kidnapping, first degree burglary, and criminal sexual conduct first degree (doc. 1). As ground one for relief the petitioner asserts IAC for failure to interview witnesses or interact appropriately with client (id. at 5-7). The petitioner's second ground for relief is newly found evidence because there was DNA evidence and a misidentification not provided previously to the petitioner (id. at 7-8). The petitioner did not complete the section regarding timeliness (id. at 13-14). For relief, the petitioner seeks to have his sentence vacated (id. at 15). Because the instant matter appeared duplicative of Habeas Action Number 1, on December 14, 2022, the undersigned instructed the petitioner to complete Special Interrogatories (doc. 5). In response to the Special Interrogatories, the petitioner indicated that he intentionally filed a second habeas petition pertaining to his convictions for kidnapping, first degree burglary, and criminal sexual conduct first degree and did not want to dismiss his duplicate petition (doc. 7).
STANDARD OF REVIEW
The undersigned has reviewed the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's 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 (2007) (percuriam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, 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, 391 (4th Cir. 1990).
DISCUSSION
As noted above, the petitioner filed the instant habeas action seeking to have his convictions and sentences for kidnapping, first degree burglary, and criminal sexual conduct first degree vacated (doc. 1). However, as set forth below, the instant action should be dismissed as it is duplicative of Habeas Action Number 1, which remains pending at this time. Thomas v. Jackson, C/A No. 6:22-cv-03410-TLW-KFM.
Efficient judicial administration generally requires the federal courts to avoid duplicative federal litigation. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). Generally, a case pending in federal court “may be dismissed for reasons of wise judicial administration whenever it is duplicative of a parallel action already pending in another federal court.” Nexsen Pruet, LLC v. Westport Ins. Corp., C/A No. 3:10-cv-00895-JFA, 2010 WL 3169378, at *2 (D.S.C. Aug. 5, 2010) (internal quotation marks omitted) (quoting Motley Rice, LLC v. Baldwin & Baldwin, LLP, 518 F.Supp.2d 688, 697 (D.S.C. 2007)). Suits are considered parallel if “substantially the same parties litigate substantially the same issues in different forums.” New Beckley Mining Corp. v. Int'l Union, United Mine Workers of Am., 946 F.2d 1072, 1073 (4th Cir. 1991) (citing LaDuke v. Burlington N. R.R., 879 F.2d 1556, 1559 (7th Cir. 1989)). Here, the petition in this action and in Habeas Action Number 1 seek relief related to the petitioner's convictions for kidnapping, first degree burglary, and criminal sexual conduct first degree in the Richland County Court of General Sessions. Compare doc. 1 with Thomas v. Jackson, C/A No. 6:22-cv-03410-TLW-KFM, at doc. 1. The petitioner appears to concede that this action is duplicative, indicating that he did intend to file a second habeas action regarding the above convictions in response to the Court's Special Interrogatories (doc. 7 at 1). As such, the instant matter and Habeas Action Number 1 are parallel suits.
As such, because this action is duplicative of Habeas Action Number 1, and was filed later in time, the interests of justice weigh heavily in favor of dismissing this action in light of Habeas Action Number 1, which remains pending in this court. See Van Dusen v. Barrack, 376 U.S. 612, 615 (1964) (internal quotation marks and citation omitted) (dismissal of duplicative action necessary to “prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense.”).
RECOMMENDATION
Because this matter is duplicative of Habeas Action Number 1, which remains pending at this time, the undersigned recommends that the district court dismiss this action without prejudice and without issuance and service of process. See Britt v. DeJoy, 49 F.4th 790 (4th Cir. 2022) (published). The attention of the parties is directed to the important notice on the next page.
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, Room 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).