Opinion
CA 9:22-cv-01623-MGL-MHC
05-02-2023
Larry James Tyler, Petitioner, v. Director of the Darlington County Detention Center, Respondent.
ORDER AND REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
Petitioner Larry James Tyler, (“Petitioner”), is seeking a writ of habeas corpus under 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 Motion to Dismiss. ECF Nos. 22, 26, 32.
Petitioner has also moved to file a “supplemental complaint” and for “Defendant” to reply to his Response to Respondent's Motion to Dismiss. ECF Nos. 23, 36. Regarding his motion for leave to file a supplemental complaint, Petitioner's proposed supplement is not a proper supplemental petition as it does not add facts that occurred after the filing of the original petition. Rather, the filing presents a new legal argument. The undersigned has considered Petitioner's new legal argument in this Report and Recommendation but DENIES his Motion for Leave to File a Supplemental Complaint (ECF No. 23). Petitioner's Motion for Defendant to Reply to Petitioner's Response to the Motion to Dismiss (ECF No. 36) is also DENIED. Although this Court's Local Rules allow for replies to responses in opposition, the Local Rules expressly provide, “Replies to responses are discouraged.” L. Civ. R. 7.07 (D.S.C.). Moreover, the statute cited by Plaintiff, 42 U.S.C. § 1997e(g), addresses a defendant's right to reply to a prisoner's complaint, but does not relate to replies to any other filing by the prisoner. See 42 U.S.C. § 1997e(g); see also Jones v. Bock, 549 U.S. 199, 216 (2007). Respondent was not required to file a Reply to Petitioner's Response to the Motion to Dismiss, and the Court does not find one necessary in this case.
Petitioner filed this action pro se on May 23, 2022. ECF No. 1. The Court allowed Petitioner to supplement his Petition on September 19, 2022. ECF Nos. 12-14. Respondent filed a Motion to Dismiss on November 3, 2022. ECF No. 22. Petitioner filed a Motion to Dismiss and related supplement on November 14, 2022, and filed a Response to Respondent's Motion to Dismiss on November 21, 2022. ECF Nos. 26-28. Petitioner filed a Motion for Release on March 1, 2023, and that Motion has now been fully briefed. ECF Nos. 32, 34, 35.
Petitioner has also filed a Motion to Dismiss. ECF No. 26. However, Petitioner moves to dismiss Respondent's Motion to Dismiss, not the action itself. See Id. at 1. As such, the content of Petitioner's Motion is responsive to Respondent's Motion to Dismiss and the undersigned has considered it, along with ECF Nos. 27 and 28, as a response, rather than a separate motion. To the extent Petitioner intended this filing as a separate motion, the undersigned recommends that Motion be denied for the reasons set forth below.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion to Dismiss, ECF No. 22, be denied.
I. BACKGROUND
The undisputed facts at trial establish that Petitioner gave his cell phone to two minor acquaintances, “Child” and “Sister,” and allowed them to look at pictures on the phone. The minors saw pictures of some girls and Petitioner, all in bikinis or underwear. The minors did not read any text messages, they only looked at pictures. Child's older cousin, Tyquan Brown, later inherited Petitioner's phone and found text messages saved as drafts that appeared to be intended for Child. The messages expressed a desire for Child and instructed her not to tell anyone, especially Sister. Tyquan told Child's mother, who called the police. The police initiated a traffic stop and arrested Petitioner for driving with a suspended license. After questioning Petitioner, the police obtained a search warrant for his home and vehicle and recovered additional photos of scantily clad young girls in provocative poses from other phones and Petitioner's computer.
In February 2013, Petitioner was indicted for criminal solicitation of a minor, second-degree sexual exploitation of a minor, contributing to delinquency of a minor, and disseminating harmful material to minors. ECF No. 22-2 at 98-105. From February 25-27, 2013, Petitioner proceeded to trial before the Honorable Paul M. Burch. ECF No. 22-1 at 3. He was represented at trial by a public defender, Richard Jones (“Trial Counsel”). Id. The jury found Petitioner guilty of all four charges, and Judge Burch sentenced Petitioner to three years' imprisonment for contributing to delinquency of a minor and eight years each for the other three charges, all to run concurrently. ECF No. 22-2 at 11-12, 19.
Petitioner filed a timely appeal raising a single issue:
Whether the trial court erred in refusing to grant a directed verdict to the charge of contributing to the delinquency of a minor when the State failed to present any substantial evidence beyond a reasonable doubt that applicant did anything to make the minor delinquent as alleged by the indictment?Id. at 116. The South Carolina Court of Appeals affirmed Petitioner's convictions and sentences on January 14, 2015. Id. at 110-111; State v. Tyler, Op. No. 2015-UP-025 (S.C. Ct. App. Jan. 14, 2015). The matter was remitted to the lower court on January 30, 2015. ECF No. 22-2 at 112.
Petitioner applied for post-conviction relief (“PCR”) on January 2, 2015, and raised the following grounds for relief:
Ground One: Defendant's trial counsel rendered ineffective assistance by failing to object to the consolidation of trials defendant was entitled to have severed.
Ground Two: Defendant's trial counsel rendered ineffective assistance by failing to challenge the validity of the search of Appellant's home, computer and e-mail as well as the admissibility of any evidence seized as a result of said search.
Ground Three: Defendant's trial counsel rendered ineffective assistance by failing to object, specifically to the admission of any photos obtained from Defendant's email account which is not on his computer, all of which were irrelevant and inflammatory.
Ground Four: Defendant's trial counsel rendered ineffective assistance by failing to remedy the double jeopardy violations with respect to Defendant's criminal solicitation of a minor and contributing to the delinquency of a minor conviction.
Ground Five: Defendant's appellate counsel rendered ineffective assistance on appeal by abandoning on appeal Defendant's properly preserved motion for directed verdict on all counts due to insufficient evidence, and by refusing to submit defendant's argument on appeal as to the sufficiency of the evidence.ECF No. 22-2 at 24-30. On July 18, 2016, after briefing by the State, the Honorable G. Thomas Cooper conducted an evidentiary hearing, at which Petitioner was represented by attorney Lance S. Boozer. Id. at 40. Judge Cooper denied and dismissed Petitioner's PCR application on November 4, 2016. Id. at 89-97.
Petitioner appealed and Appellate Defender LaNelle Cantey DuRant filed a Johnson Petition for Writ of Certiorari on his behalf presenting the following issue:
Did the PCR court err in not finding trial counsel ineffective for failing to object to the admission of the photos found on Petitioner Tyler's home computer and email of young girls under the age of ten depicted in allegedly “unnatural” positions and one sexually explicit photo with [a] young girl which were inflammatory to the jury and prejudicial to Petitioner Tyler?ECF No. 22-7 at 3. Petitioner submitted multiple pro se briefs in support of the Petition for Writ of Certiorari presenting additional issues. ECF Nos. 22-8, 22-9, 22-10. The South Carolina Court of Appeals denied counsel's motion to be relieved and ordered the parties to brief the question of whether “trial counsel was ineffective in failing to move to sever the trial of Petitioner's charge for second-degree sexual exploitation of a minor from the trial of his remaining charges.” ECF No. 22-11. On March 16, 2022, after further briefing by the parties, the Court of Appeals found Trial Counsel's failure to move for a separate trial on Petitioner's sexual exploitation charge constituted deficient performance that resulted in prejudice and reversed and remanded for a new trial. ECF No. 22-18. The State filed a petition for rehearing, ECF No. 22-19, which the Court of Appeals granted, ECF No. 22-20. And, on June 22, 2022, the Court substituted a new opinion affirming Petitioner's conviction for second-degree exploitation of a minor but reversing and remanding on the other three charges. ECF No. 22-21. The matter was remitted to the lower court on July 14, 2022. ECF No. 22-22.
On October 12, 2015, while Petitioner's PCR action was pending, the State filed a Petition Pursuant to the Sexually Violent Predator Act (the “Act”), SC Code Ann. §§ 44-48-10 et. seq., alleging Petitioner qualified as a sexually violent predator (“SVP”) under the Act and should be committed to the custody of the South Carolina Department of Mental Health for long term control, care, and treatment. ECF No. 22-4. Petitioner moved to dismiss those proceedings and specifically objected to the requirement that he submit to a penile plethysmograph examination. See ECF No. 22-5. After a hearing, the Honorable Roger E. Henderson, Circuit Court Judge, denied Petitioner's motion to dismiss, granted Petitioner time to cooperate with the evaluation, and instructed that, if he did not cooperate, he would “be held in contempt and continue to be detained at the Darlington County Detention Center until such time as he purged himself of that contempt by cooperating with the evaluation.” Id. Petitioner refused to participate in the evaluation, and on October 31, 2016, Judge Henderson ordered he be held in contempt and remain at the Darlington County Detention Center. Id. Although Petitioner's eight-year sentence for second-degree exploitation of a minor has expired, he is currently incarcerated at the Darlington County Detention Center pursuant to Judge Henderson's contempt order.
Petitioner filed the current federal habeas action on May 23, 2022 and raised the following grounds for relief:
Ground One: Dismissal of indictments.
Ground Two: Failure to object to introduction of inadmissible evidence.
Ground Three: Evidentiary hearing.
Ground Four: Prosecutorial misconduct.ECF No. 1 at 5, 7, 8, 10. In a supplemental petition filed after the South Carolina Court of Appeals issued its revised opinion, Petitioner advanced additional arguments regarding the admissibility of evidence and challenged the state court's finding that his second-degree sexual exploitation of a minor charge should stand. ECF No. 14.
II. STANDARD OF REVIEW
Respondent moves to dismiss this action under Federal Rule of Civil Procedure 12(b)(1). ECF No. 22 at 6. A motion to dismiss under Rule 12(b)(1) represents a challenge to the Court's subject matter jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 507 (2006). “When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). In deciding such a motion, “the district court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014) (internal quotation marks omitted). When determining whether subject matter jurisdiction is present, the court applies the standard applicable to motions for summary judgment where the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists. Richmond, 945 F.2d at 768 (citing Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1559 (9th Cir. 1987)). “The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id.
III. DISCUSSION
The habeas statute provides that a federal court “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a) (emphasis added); see also Maleng v. Cook, 490 U.S. 488, 490-91, 494 (1989) (per curiam) (holding a habeas petitioner must be “‘in custody' under the conviction or sentence under attack at the time his petition is filed” and that the failure to establish the ‘in custody' requirement deprives a federal habeas court of subject matter jurisdiction). Respondent argues the Petition must be dismissed because Petitioner is no longer in custody pursuant to the convictions he challenges. ECF No. 22 at 1. Petitioner agrees his eight-year sentence had run by the time he filed the Petition, ECF No. 28 at 1-2, but asserts this Court retains jurisdiction because (1) he was in custody pursuant to those convictions when he initiated his state court appellate and collateral proceedings, those proceedings did not conclude until 2022, and he brought this action within one year of the state court's final decision and (2) the contempt order under which he is currently in custody arose out of his challenged convictions. See ECF Nos. 26 at 1, 27 at 2-4.
At the PCR hearing in January 2017, Petitioner testified he had maxed out his sentence from his original charges and was at that time in custody pursuant to a court order related to the State's sexually violent predator petition. ECF No. 22-2 at 52. So, the record suggests he has not been held pursuant to the four criminal convictions he challenges since at least 2017. In addition, Respondent has contacted the Darlington County Detention Center, which confirmed on November 3, 2022 that Petitioner was only in custody pursuant to Judge Henderson's October 31, 2016 order finding Petitioner in contempt of court for failing to comply with the SVP evaluation. ECF No. 22 at 2 n.2.
Petitioner advances several other arguments in support of jurisdiction. Petitioner states a habeas petitioner serving consecutive sentences may challenge a sentence that has not yet started. ECF No. 26 at 2. Petitioner is correct. See Maleng v. Cook, 490 U.S. 488, 493 (1989) (finding petitioner may challenge sentence he has not yet begun to serve). However, Petitioner is not serving consecutive sentences. Rather, he has fully served the sentence for the conviction upheld by the state courts. Petitioner also alleges his convictions were the result of fraud due to misrepresentations by the arresting officer and prosecutor. ECF No. 28 at 3-4. He asserts fraud “can be reported at any time, because there is no statute of limitation on fraud.” Id. at 3. This may be true, but Petitioner cites no authority suggesting an allegation of fraud confers federal habeas jurisdiction. Petitioner also contends he is entitled to bring a federal civil rights action because his substantive rights have been violated. Id. at 7-8. Petitioner's right to bring a federal civil rights action also does not confer federal habeas jurisdiction.
The Supreme Court has interpreted § 2254(a) “as requiring that the habeas petitioner be ‘in custody' under the conviction or sentence under attack at the time his petition is filed.” Maleng, 490 U.S. at 490-91 (emphasis added). The Court has “never held . . . that a habeas petitioner may be ‘in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed.” Id. at 491-92 (emphasis in original). Here, it is undisputed that Petitioner was no longer in custody pursuant to the convictions listed in the Petition at the time he filed the Petition. See ECF Nos. 1 at 1 (identifying the four 2014 convictions as the “crimes of which [he was] convicted and sentenced in this case”), 28 at 1-2. And, under Supreme Court precedent, it is irrelevant that he was in custody pursuant to those convictions when he filed his state direct appeal and PCR action.
However, Petitioner's still valid conviction for sexual exploitation of a minor triggered the State's SVP petition under the Act, which led to Petitioner's refusal to submit to portions of the SVP evaluation, which led to Petitioner being held in contempt, which led to Petitioner's current custody status. The question is whether that chain of events is too tenuous to satisfy the statutory ‘in custody' condition.
The SVP proceedings, and their related requirements, were “not imposed as a sentence for” Petitioner's convictions, but rather as a collateral consequence of those convictions. See Wilson v. Flaherty, 689 F.3d 332, 338 (4th Cir. 2012) (finding petitioner not “in custody” due to statutory sex offender registration requirements resulting on constraints on petitioner's liberties). As noted by the Fourth Circuit,
[i]f we were to find that the requirements of [state statutes governing sex offender registration requirements] were not in fact collateral consequences, then we would be holding that any convicted sex offender could challenge his conviction “at any time on federal habeas,” with the consequence that the in-custody jurisdictional requirement of § 2254 would be read out of the statute.Id. (quoting Maleng, 490 U.S. at 492); see also Maleng, 490 U.S. at 492 (“once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody' for the purposes of a habeas attack upon it”).
But, based on the Supreme Court's approach in Maleng, several Circuits have held the inquiry does not end when a petitioner's custody at the time he files the petition relates to the expired conviction and sentence. In Young, the Third Circuit found the district court should have liberally construed the petition as attacking the sentence the petitioner was serving at the time he filed the petition, rather than the expired sentence. Young, 83 F.3d at 73-74. The court held that, because the petitioner was “in custody under a sentence resulting from (or enhanced by)” the prior conviction, he should be permitted to challenge that conviction. Id. at 77-79.
Notably, the Ninth Circuit has reached the same conclusion where a petitioner was in custody pursuant to a sexually violent predator statute at the time of filing but had fully served his sentence on the predicate offense. See Brock v. Weston, 31 F.3d 887, 890-91 (9th Cir. 1994) (finding the district court should have liberally construed petition as an attack on expired conviction in the context of an attack on commitment under sexually violent predator statute). In Brock, the petitioner was in physical custody at the time he filed his habeas petition pursuant to an Order of Commitment under a state sexually violent predator statute that would not have existed, absent the prior, expired conviction. See id. at 888-89.
Here, Petitioner is physically in custody, but for contempt of court for his refusal to comply with a requirement of the Act. Thus, the facts of this case fall somewhere between those set forth in Wilson and Brock.
Respondent acknowledges Petitioner's custody status but summarily concludes that Petitioner must be in custody pursuant to a state-court conviction for the Court to have jurisdiction. Respondent does not discuss the complex case law surrounding this issue at all and, in fact, does not cite a single case in the Motion to Dismiss. See generally ECF No. 22. Accordingly, Respondent fails to carry its burden of showing the material jurisdictional facts are not in dispute or that Respondent is entitled to prevail as a matter of law.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion to Dismiss (ECF No. 22) be DENIED and that Petitioner's Motion to Dismiss (ECF No. 26) be DENIED. It is ORDERED that Petitioner's Motion for Leave to File a Supplemental Complaint (ECF No. 23) and Petitioner's Motion for Defendant to Reply (ECF No. 36) are DENIED.
The parties are directed to the next page for their rights to file objections to this 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 835
Charleston, South Carolina 29402
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).