Opinion
C/A No. 8:20-cv-03168-HMH-JDA
01-04-2021
Michael T. Braxton, Petitioner, v. Warden of Kershaw Correctional Institution, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on cross motions for summary judgment. [Docs. 15; 18.] Petitioner is a state prisoner who seeks relief under 28 U.S.C. § 2254. 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., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Proceeding pro se and in forma pauperis, Petitioner filed this Petition for writ of habeas corpus on August 31, 2020. [Doc. 1.] On November 17, 2020, Respondent filed a motion for summary judgment. [Doc. 15.] On the same day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 16.] On November 30, 2020, the Clerk docketed a motion for summary judgment from Petitioner, which this Court also construes as a response to Respondent's summary judgment motion. [Doc. 18.] On December 14, 2020, Respondent filed a response to Petitioner's summary judgment motion. [Doc. 19.] Both summary judgment motions are now ripe for review.
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 August 31, 2020. [Doc. 1-2 at 1 (envelope stamped as received by prison mailroom on August 31, 2020).]
BACKGROUND
Petitioner is confined in the South Carolina Department of Corrections ("SCDC") pursuant to orders of commitment of the Anderson County Clerk of Court. [Docs. 1 at 1.] Much of the factual background relevant to this case is described by the Court of Appeals of South Carolina in Braxton v. South Carolina Department of Corrections:
On November 17, 1983, [Petitioner] was sentenced to thirty years' incarceration after pleading guilty to first degree criminal sexual conduct (CSC). [Petitioner] served ten years and four months of his sentence, and on March 31, 1994, he was conditionally released to the state of Tennessee on parole. On April 16, 1996, while on parole in Tennessee, [Petitioner] was arrested for two counts of aggravated rape. On May 28, 1996, while he was in custody for those arrests, South Carolina issued a parole violation warrant, and a parole violation hold was placed on [Petitioner]. [Petitioner] was held in pretrial detention until he was sentenced to twenty-three years' imprisonment in the custody of the Tennessee Department of Corrections (TDOC), and he was transferred to TDOC on June 1, 1998. On June 8, 1998, South Carolina issued a second parole violation warrant on [Petitioner]. [Petitioner] completed his sentence in Tennessee on November 2, 2015. Thus, from the time of his arrest in 1996 until he finished serving his sentence in 2015, [Petitioner] served approximately nineteen years and five months in Tennessee. Following his release, beginning November 8, 2015, [Petitioner] was incarcerated in Anderson County, South Carolina. Following an appearance before the Full Board of the South Carolina Board of Pardons and Parole on January 20, 2016, [Petitioner] was transferred back into the custody of SCDC with a release date of June 22, 2022.
[Petitioner] timely filed a Step 1 grievance with SCDC, claiming SCDC failed to give him credit towards his remaining CSC sentence for the time he spent on successful parole supervision and for the time he spent incarcerated in Tennessee. [Petitioner's] Step 1 grievance was denied.
[Petitioner] then filed a Step 2 grievance with SCDC, restating the allegations set forth in his Step 1 grievance and also arguing he should be credited for time served "incarcerated in Tennessee . . . (which includes the time served during the extradition process)." His Step 2 grievance was subsequently denied.Braxton, 846 S.E.2d 383, 385 (S.C. Ct. App. 2020) (footnotes omitted).
[Petitioner] then appealed SCDC's denial of his grievances to the [Administrative Law Court ("ALC")]. He argued SCDC erred in refusing to give him credit (1) for the time he spent on parole, (2) for the time he spent in pretrial detention and incarcerated for unrelated charges in Tennessee while there were parole violation warrants from South Carolina in place, and (3) for the time he served for the period he was held in Anderson County before returning to the custody of SCDC. By order dated August 24, 2017, the ALC affirmed SCDC's final decision regarding the calculation of [Petitioner's] sentence.
Addressing Petitioner's claims, the South Carolina Court of Appeals held that "the ALC erred in affirming SCDC's refusal to grant him credit for time served while he was successfully on parole prior to his Tennessee arrest" and therefore remanded that "issue to the ALC to recalculate [Petitioner's] sentences such that he receives credit for the time he served while on parole." Id. at 386. Regarding Petitioner's arguments that the ALC erred in refusing to give him credit for time served before and after he was sentenced on charges in Tennessee and in refusing to give him credit for the time he was held in Anderson County, the South Carolina Court of Appeals affirmed. Id. at 387-88.
Petitioner filed a notice of appeal and a petition for a writ of certiorari in the Supreme Court of South Carolina, attempting to challenge the portion of the decision in which the appellate court had affirmed, but the Supreme Court of South Carolina struck the notice of appeal and petition, holding that the decision appealed from was not final insofar as no petition for rehearing or reinstatement had been acted on by the South Carolina Court of Appeals. [Doc. 15-4.]
On remand, Administrative Law Judge H. W. Funderburk, Jr. determined that the time Petitioner was on parole prior to his Tennessee arrest was two years and 16 days and therefore ordered that Petitioner be credited with that amount toward his sentence. [Doc. 15-2 at 10-11.] In response to that order, SCDC wrote a letter to Judge Funderburk dated September 1, 2020, notifying him that Petitioner "ha[d] already been given credit for the time he successfully served on parole prior to his Tennessee arrest," although SCDC acknowledged that its prior court filings had "caused confusion" regarding this issue. [Doc. 18-2 at 1.] In the letter, SCDC explained in detail how Petitioner's release date had been calculated and informed Judge Funderburk that "once [he had] had an opportunity to review th[e] letter, SCDC w[ould] adjust [Petitioner's] credits according to any further instruction." [Id. at 1-2.]
Judge Funderburk responded to the letter in his own letter dated September 9, 2020. [Id. at 3.] In it, he noted that he understood from the letter and attached printouts that SCDC "had this information before the case came to [the ALC] or to the Court of Appeals." [Id. at 3.] He sated that he could "only follow the directions given [to him] by the Court of Appeals," and thus, he suggested that SCDC "forward [its] explanation to the Court of Appeals and ask for its guidance." [Id.] SCDC subsequently sent Petitioner a letter dated September 28, 2020, stating its position that "SCDC [wa]s in compliance with" Judge Funderburk's order on remand because Petitioner's March 25, 2021, release date already gave Petitioner credit for the two years and 16 days in question, as well as additional days. [Doc. 15-2 at 1.] On that basis, SCDC noted that it "consider[ed] the matter closed," that "no further action will be taken," and that Petitioner had "already been given more parole time than" Judge Funderburk had ordered in his decision on remand. [Id.]
Petition for Writ of Habeas Corpus
Petitioner filed this Petition for writ of habeas corpus on August 31, 2020. [Doc. 1.] Petitioner raises the following grounds/facts for relief, quoted substantially verbatim, in his Petition pursuant to 28 U.S.C. § 2254:
GROUND ONE: Is the State of South Carolina in violation of the 5th, 8th and 14th Amendments of the United States Constitution by confining the Petitioner to an expired sentence?[Doc. 1 at 5, 8.]
Supporting facts: After being remanded back to the South Carolina Department of Corrections after 22 years due to a parole violation, in which no probable cause or revocation hearing was rendered prior to, the agency erroneously miscalculated the Petitioner's remaining sentence, and has refused to recognize the expiration status of the sentence, in spite of his numerous appeals both formal and informal. The Petitioner's sentence has been invalidated by the South Carolina Court of Appeals, on July 1, 2020. SCDC still refuses to recognize status.
GROUND TWO: Is the State of South Carolina in violation of Ex Post Facto provisions in the case of the Petitioner.
Supporting facts: The South Carolina Court of Appeals ordered on July 1, 2020, that the Petitioner be awarded his time on Parole, the South Carolina Administrative Law court in its Order on Remand deemed the Petitioner's parole time to be from March 31, 1994, to April 16, 1996, 2 years, 16 days. Case No. 20-ALJ-04-0325-A-AP. In response to this order the South Carolina Department of Corrections has implemented a potential punishment without probable cause, that was NOT present at the time of the Petitioner's sentence, or his initial release before revocation of his parole. See State of S.C., County of Anderson, SENTENCE HAS EXPIRED!!.
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only),
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Habeas Corpus
Generally
Because Petitioner filed the Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998); see also In re Wright, 826 F.3d 774, 783 (4th Cir. 2016) (holding that "when a prisoner being held 'pursuant to the judgment of a State court' files a habeas petition claiming the execution of his sentence is in violation of the Constitution, laws, or treaties of the United States," § 2254 governs). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or28 U.S.C. § 2254(d). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision," and "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington v. Richter, 562 U.S. 86, 101-02 (2011). Moreover, state court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Procedural Bar
Federal law establishes this Court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person "is in custody in violation of the Constitution or laws or treaties of the United States" and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this Court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (I) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
28 U.S.C. § 2254. The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. Id. § 2254(b)(1)(A). "To satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim 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).
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The undersigned has previously summarized the applicable exhaustion requirements. Odom v. Warden of Broad River Corr. Inst., No. 8:17-cv-02273-TMC-JDA, 2018 WL 2729168, at *3 (D.S.C. May 18, 2018), Report and Recommendation adopted by 2018 WL 2718044 (D.S.C. June 6, 2018). To exhaust state remedies when attacking the execution of a sentence, a petitioner must follow the procedure set out in Al-Shabazz v. State, 527 S.E.2d 742, 750 (S.C. 2000). See Slezak v. S.C. Dep't of Corr., 605 S.E.2d 506, 507 (S.C. 2004). Generally, a state prisoner's sentence calculation claim will fall within the category of administrative issues that the Supreme Court of South Carolina has identified as properly being raised through the prison grievance process with appeal to the South Carolina ALC. See Al-Shabazz, 527 S.E.2d 742. Pursuant to the South Carolina Administrative Procedures Act ("SCAPA") and the South Carolina Appellate Court Rules, an inmate who is dissatisfied with the decision of the ALC may seek judicial review from the Court of Appeals of South Carolina, and, ultimately, the Supreme Court of South Carolina. S.C. Code Ann. § 1-23-610; Rule 242, SCACR. Therefore, a petitioner must first exhaust the administrative remedies available through the SCDC grievance process, and then he must fully exhaust his state court remedies as provided in the SCAPA before he brings his petition for federal habeas review. See Al-Shabazz, 527 S.E.2d at 752-57; 28 U.S.C. § 2254(b)(1)(A). The SCDC administrative decisions from which an inmate may seek review from the ALC "include inmate discipline and punishment, the calculation of an inmate's sentence or sentence-related credits, or an inmate's custody status." Jones v. Williams, No. 1:18-3320-JMC-SVH, 2019 WL 831120, at *2 (D.S.C. Jan. 8, 2019).
Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner seeks habeas corpus relief based on an issue he failed to raise at the appropriate time in state court, removing any further means of bringing that issue before the state courts. In such a situation, the petitioner has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. See Smith v. Murray, 477 U.S. 527, 533 (1986). The United States Supreme Court has stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See id. Bypass can occur at any level of the state proceedings if a state has procedural rules that bar its courts from considering claims not raised in a timely fashion. Id.
However, if a federal habeas petitioner can show both (1) "'cause' for noncompliance with the state rule" and (2) "'actual prejudice resulting from the alleged constitutional violation[,]'" the federal court may consider the claim. Smith, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986). Further, if the petitioner does not raise cause and prejudice, the court need not consider the defaulted claim. See Kornahrens v. Evatt, 66 F.3d 1350, 1363 (4th Cir. 1995).
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Absent a showing of cause and actual prejudice, a federal court is barred from considering the claim. Wainwright, 433 U.S. at 87. In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915.
Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the Supreme Court of South Carolina in limited circumstances—where a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or where a "fundamental miscarriage of justice" has occurred, Carrier, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim, where the novelty of the constitutional claim is such that its legal basis is not reasonably available to the petitioner's counsel. Id. at 487-89; Reed, 468 U.S. at 16. Absent a showing of "cause," the court is not required to consider "actual prejudice." Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice to excuse a default. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. Engle v. Isaac, 456 U.S. 107, 134-35 (1982).
DISCUSSION
Respondent argues that Petitioner failed to exhaust his administrative remedies as to both claims to the extent that they challenge SCDC's determination that decisions of the South Carolina Court of Appeals and Judge Funderburk on remand did not alter the release date for Petitioner that SCDC had previously calculated. [Doc. 15-1 at 4-6.] The Court agrees.
As Respondent argues, if Petitioner believed that SCDC erred in determining that the state court decisions did not alter Petitioner's release date, he was free to appeal SCDC's determination and to appeal any unfavorable ALC decision to the state appellate courts. Because he did not do so, the Court concludes as a matter of law that Petitioner has failed to exhaust his state court remedies with respect to his challenges to SCDC's determination. The Court notes that Petitioner appears to argue that he was unaware that he needed to take these steps to exhaust his state remedies. [Doc. 18-1 at 4.] However, "ignorance of the law cannot constitute cause," Taylor v. Warden, No. 0:14-2032-TMC, 2015 WL 5603296, at *5 (D.S.C. Sept. 23, 2015), and Petitioner does not otherwise raise cause or prejudice for his failure to appeal SCDC's determination on remand or assert actual innocence. The Court therefore recommends that Respondent's summary judgment motion be granted as to both grounds, that Petitioner's summary judgment motion be denied, and that his Petition be dismissed with prejudice.
Petitioner does argue that, his failure to take the proper steps to challenge the portion of the South Carolina Court of Appeals decision that was unfavorable to him was due to his being denied access to legal research materials from May to August 2020. [Docs. 18-1 at 4-5; 18-2 at 4.] However, Petitioner's failure to properly challenge the South Carolina Court of Appeals' decision is immaterial to his procedural default of his claims alleging that the SCDC failed in September 2020 to correctly apply the state courts' decisions on remand.
Petitioner also points out that he has recently petitioned the Supreme Court of South Carolina partially on the basis that SCDC has not properly applied the state court decisions. [Doc. 181 at 56; Doc. 155.] However, the filing of such a petition does not constitute the exhaustion of administrative remedies. See Durkin v. Davis, 538 F.3d 1037, 1042 (4th Cir. 1976) (holding that § 2254 petition concerning state sentence credit should have been dismissed because the petitioner's presentation of his claim in a mandamus petition to the state's highest court could not satisfy the exhaustion requirement when petitioner had a statecourt habeas remedy available and state's highest court may have denied mandamus petition on jurisdictional grounds); Melton v. Taylor, No. 6:15cv1400RBH, 2015 WL 2345305, at *4 (D.S.C. May 14, 2015) ("[A] petition filed in the original jurisdiction of a State's highest court does not satisfy the exhaustion requirement of § 2254."); see also Anderson v. Harless, 459 U.S. 4, 6 (1982) (holding that a habeas petitioner must fairly present the substance of his habeas claim in state court prior to federal review).
Under the procedure rules of the ALC, Petitioner's request for a contested case hearing before the ALC was required to "be filed and served within thirty (30) days after actual or constructive notice of the agency's decision." SCALCR 11(C); see South Carolina Dep't of Consumer Affairs v. Entera Holdings, LLC, No. 2015-UP-102, 2015 WL 918496, at *1 (S.C. Ct. App. Mar. 4, 2015). SCDC informed Petitioner of its final decision via letter dated September 28, 2020, which he acknowledges receiving in mid-October. [Doc. 18-1 at 4.] Accordingly, his time for appealing SCDC's decision has expired. --------
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion for summary judgment [Doc. 15] be GRANTED; Petitioner's motion for summary judgment [Doc. 18] be DENIED; and the Petition [Doc. 1] be DISMISSED WITH PREJUDICE.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge January 4, 2021
Greenville, South Carolina