Opinion
C/A No.: 5:20-1572-RMG-KDW
08-24-2020
Shaheen Cabbagestalk, #295567, Petitioner, v. Bryan P. Stirling, Respondent.
REPORT AND RECOMMENDATION
Shaheen Cabbagestalk ("Petitioner") is an inmate at Kershaw Correctional Institution ("KCI") of the South Carolina Department of Corrections ("SCDC") who 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 Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Motion to Dismiss. ECF No. 54. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion by August 17, 2020. ECF No. 55. Petitioner filed a response on July 27, 2020. ECF No. 58.
Although filed on a § 1983 complaint form, ECF No. 1, this matter was docketed as a habeas Petition based on the type of relief Petitioner sought. Specifically, Petitioner wishes to be released from SCDC custody, and he is not seeking monetary damages. Thus, the court could not consider this matter to be a § 1983 case for which a successful party would only be entitled to damages. See e.g., Heck v. Humphrey, 512 U.S. 477, 481 (1994) (internal citations omitted) ("[P]etitioner seeks not immediate or speedier release, but monetary damages, as to which he could not "have sought and obtained fully effective relief through federal habeas corpus proceedings.'"); Wagstaff v. State of Md., 567 F. Supp. 1477, 1478 (D. Md. 1983) ("Declaratory and injunctive relief which would overturn a state judgment of conviction are not cognizable in a § 1983 action regardless of the absence of a claim for immediate release. As plaintiff's first two claims are cognizable solely in federal habeas corpus, exhaustion of state remedies is required.").
This matter is also before the court on the following Motions filed by Plaintiff: Motion for Emergency Relief, ECF No. 15; Motion for a Temporary Restraining Order, ECF No. 26; Motion to Enforce Relief, ECF No. 32; Motion for Removal out of SCDC, ECF No. 37; and Motion for Emergency Writ of Mandamus, ECF No. 51.
The matter having been fully briefed, it is ripe for disposition. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion to Dismiss, ECF No. 54, be granted and Petitioner's Motions for injunctive relief, ECF Nos. 15, 26, 32, 37, and 51, be denied. I. Factual and Procedural Background
Petitioner is currently incarcerated in the KCI. ECF No. 1 at 1. In 2014, while incarcerated at Lieber Correctional Institution, Petitioner filed a habeas action pursuant to 28 U.S.C. § 2254 that was denied in 2015. Cabbagestalk v. McFadden, No. 5:14-CV-3771-RMG, 2015 WL 4077211 (D.S.C. July 1, 2015). As explained in the previous habeas action, in 2007, Petitioner was indicted by the Dillon County Grand Jury in March 2007 for assault and battery with intent to kill ("ABWIK") and armed robbery. Id. at *5. Ultimately, Petitioner pleaded guilty to the armed robbery charge, and the State dismissed the ABWIK charge. Id. The circuit court sentenced Petitioner to an 18-year term of imprisonment. Id. Petitioner appealed his conviction, and the appeal was dismissed. Id. It appears that Plaintiff is not eligible for parole or release until May 6, 2023. See https://public.doc.state.sc.us/scdc-public/inmateDetails.do?id=%2000295567 (last visited August 20, 2020).
Petitioner filed this Petition for writ of habeas corpus on April 22, 2020. ECF No. 1. In his Petition, Petitioner is not challenging his conviction and sentence. Rather, he is arguing that based on the existence of the Corona Virus he should be released from SCDC custody. Further, he maintains that while he was housed at the Broad River Correctional Institute ("BRCI"), he experienced a lack of social distancing, no wellness checks, lack of adequate staff to assist with COVID-19 in SCDC which put his life in danger. ECF No. 1 at 7. Petitioner's other specific issues will be discussed below. II. Discussion
A. Federal Habeas Issues
Petitioner now asserts that he should be released from SCDC because he cannot safely be detained. ECF No. 1-2. Thus, he is challenging the execution of his sentence, not the conviction itself. Id. at 5. Petitioner lays out four grounds for habeas relief in his Petition and explains in a narrative under each how it is unsafe for him to be in SCDC's custody during a pandemic. Id. at 5-10. Specifically, he bases his Petition on the following grounds:
• Ground One: I am not challenging conviction this is filed [due] to SCDC being infected (Corona Virus)Id. Petitioner asks that the court order SCDC to release him to his family due to the Corona Virus. Id. at 15. Further, he represents that he has under three years left to max out, and he can finish the sentence on probation or by using an ankle monitor. Id.
• Ground Two: Imminent Danger
• Ground Three: failure to protect farmer v. brennan
• Ground Four: Emergency [E]ndangerment
B. Standard on Motion to Dismiss
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is "not required to accept as true the legal conclusions set forth in a plaintiff's complaint." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, "[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion." Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his 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). 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; or (2) resulted in a decision that was based on an unreasonable application of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). "[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." Id. at 410. 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. 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 in a similar manner 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.
a. 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.
(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 statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). The United States Supreme Court has held that "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"—which includes "petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This opportunity must be given by fairly presenting to the state court "both the operative facts and the controlling legal principles" associated with each claim. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (citing Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (internal quotation marks omitted)). That is to say, the ground must "be presented face-up and squarely." Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation marks omitted).
The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals without more is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). The McKennedy court held that In re Exhaustion had placed discretionary review by the South Carolina Supreme Court "outside of South Carolina's ordinary appellate review procedure pursuant to O'Sullivan." 559 S.E.2d at 854. As such, it is an "extraordinary" remedy under O'Sullivan, "technically available to the litigant but not required to be exhausted," Adams v. Holland, 330 F.3d 398, 403 (6th Cir. 2003).
Because the South Carolina Supreme Court has held that presentation of certain claims to the South Carolina Court of Appeals without more is sufficient to exhaust state remedies, a claim is not procedurally barred from review in this court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the South Carolina Court of Appeals.
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the Supreme Court explains:
. . . [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
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 v. Murray, 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), superseded by statute on other grounds (AEDPA).
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. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews v. Evatt, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Teague v. Lane, 489 U.S. 288, 297-98 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the state courts in limited circumstances in which 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 that a "fundamental miscarriage of justice" has occurred. Murray, 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 that hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of "cause," the court is not required to consider "actual prejudice." Turner v. Jabe, 58 F.3d 924 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
D. Analysis
Respondent moves to dismiss the instant petition based on several different arguments, including Petitioner's failure to exhaust available state remedies. ECF No. 54 at 8-9. A state prisoner may seek habeas relief either through 28 U.S.C. § 2241 or § 2254. Both avenues of habeas relief for state-court prisoners include exhaustion requirements. Although the exhaustion provisions codified under § 2254 are not contained in § 2241, the exhaustion requirement "applies to all habeas corpus actions." Fain v. Duff, 488 F.2d 218, 223 (5th Cir. 1973); see Braden v. 30th Judicial Court of Kentucky, 410 U.S. 484, 490 (1973) (applying exhaustion requirement in 28 U.S.C. § 2241 habeas corpus proceeding). This doctrine, based on principles of comity, requires that, before a federal court will review allegations of constitutional violations by a state prisoner, those allegations must first be presented to the state's highest court for consideration. See Pickard v. Connor, 404 U.S. 270, 276 (1976).
South Carolina law provides, as to certain prison administrative decisions that affect an inmate's sentence, that an inmate may seek review of an SCDC decision from the South Carolina Administrative Law Court ("SCALC"). See Al-Shabazz v. State, 527 S.E.2d 742, 750 (S.C. 2000); see also Slezak v. S.C. Dep't of Corr., 605 S.E.2d 506, 507 (S.C. 2004). These administrative decisions include inmate discipline and punishment, the calculation of an inmate's sentence or sentence-related credits, or an inmate's custody status. Sullivan v. S.C. Dep't of Corr., 586 S.E.2d 124, 126 (S.C. 2003); Al-Shabazz, 527 S.E.2d at 750. Under Al-Shabazz, a petitioner is required to initiate a grievance with SCDC, obtain a final decision, seek review by the SCALC, and then seek judicial review by the South Carolina Court of Appeals before seeking federal habeas review. Al-Shabazz, 527 S.E.2d at 752-57 (discussing the application of the Administrative Procedures Act and the review process); Rule 203(b)(6), SCACR; see also S.C. Code Ann. § 1-23-610(A)(1).
This procedure, which applies to most credit-related and sentence-calculation issues, is in contrast to other habeas corpus issues that challenge the validity of the conviction itself and generally commence in circuit court pursuant to the post-conviction relief statutes with appeal pursuant to the corresponding appellate court rules. See generally S.C. Code Ann. §§ 17-27-10, et seq.; Rule 243, SCACR.
Petitioner has not properly presented his claims regarding the safety in SCDC continuing to detain him while he serves the remainder of his sentence to the South Carolina appellate courts and has therefore failed to properly exhaust his state remedies. 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. Woodford v. Ngo, 548 U.S. 81 (2006).
In response to the Motion to Dismiss, Petitioner maintains that SCDC stated that they do not have to comply with the grievance process because they created it. ECF No. 58 at 3. Further, he represents that he relied on certain Fourth Circuit case law in deciding against filing grievances. See id. Accordingly, Petitioner fails to demonstrate that he has exhausted his claims in the state courts, and his claims are procedurally barred from review absent a showing of cause and prejudice or a miscarriage of justice.
As to the procedural default, Petitioner has not shown cause and prejudice to excuse the default. In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Petitioner has failed to meet this burden. Thus, his petition is procedurally barred from consideration by this court and should be dismissed. Murray, 477 U.S. at 495-96; see 28 U.S.C. 2254; Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir. 1990) ("Neither cause without prejudice nor prejudice without cause gets a defaulted claim into Federal Court."); Wainwright v. Sykes, 433 U.S. 72 (1977); Sawyer v. Whitley, 505 U.S. 333, 348 (1992); Bolender v. Singletary, 898 F. Supp. 876, 881 (S.D. Fla. 1995).
In the alternative, Petitioner must show a miscarriage of justice. To demonstrate a miscarriage of justice, Petitioner must show he is actually innocent. Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 622 (1998). The actual innocence standard does not apply as Petitioner is not contesting his conviction. Therefore, because Petitioner has failed to comply with the required exhaustion of administrative remedies, and has not shown cause to excuse the default, his Petition is barred from review. IV. Other Motions
Petitioner filed the following Motions seeking injunctive relief: Motion for Emergency Relief, ECF No. 15; Motion for a Temporary Restraining Order, ECF No. 26; Motion to Enforce Relief, ECF No. 32; Motion for Removal out of SCDC, ECF No. 37; Motion for Emergency Writ of Mandamus, ECF No. 51. In his Motion for Emergency Relief, Petitioner maintains that he should not have to sit and wait for the virus to kill him, and Director Sterling should release him on probation. ECF No. 15. Further, he alleges SCDC is a breeding ground for the Corona Virus. Id. In his Motion for a Temporary Restraining Order, Petitioner asks again that he be released from SCDC custody because SCDC does not comply with social distancing and there is inadequate medical attention. ECF No. 26. Further, he represents he can take care of himself on house arrest. Id. Petitioner alleges that SCDC is at fault in failing to provide him with a safe environment, and his cellmate coughs all the time. ECF No. 32. Additionally, he maintains that SCDC is overcrowded, and he and others need to be released to lessen the population. Petitioner asks to be sent from SCDC to Dillon County Detention Center ("DCDC") in his Motion for Removal out of SCDC. ECF No. 37. He argues that he is being housed in SCDC illegally and without paperwork. Id. Finally, Petitioner maintains that the paperwork for his sentence concerns James Cabbagestalk, not Shaheen Cabbagestalk, and thus, he is being falsely imprisoned. ECF No. 51. Based on the alleged unsafe conditions within SCDC, Petitioner asks to be transferred back to DCDC. Id. All motions explained herein are construed as motions for preliminary injunctions.
This precise issue has already been raised to and ruled upon by this court in Petitioner's initial habeas action. See Cabbagestalk v. McFadden, No. 5:14-CV-3771-RMG, 2015 WL 4077211 (D.S.C. July 1, 2015).
"[P]reliminary injunctions are extraordinary remedies involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances." MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (internal citations and quotation marks omitted). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). A plaintiff does not have an automatic right to a preliminary injunction, and such relief should be used sparingly. The primary purpose of injunctive relief is to preserve the status quo pending a resolution on the merits. Injunctive relief which changes the status quo pending trial is limited to cases where "the exigencies of the situation demand such relief." Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980).
An analysis of the Winter factors reveals that Petitioner's motions for injunctive relief or temporary restraining orders should be denied. First, Petitioner has not made a clear showing that he is likely to succeed on the merits of his habeas Petition, and in fact, the undersigned recommends dismissing his habeas petition herein. Second, Petitioner does not make any specific factual allegations that he is currently threatened with imminent injury, loss, or damage or is in more danger than another similarly positioned inmate in SCDC. Further, Petitioner has failed to offer any evidence to support his claims that SCDC is not taking precautions to prevent the spread of COVID-19. Finally, Petitioner has not shown that a preliminary injunction is in the public interest. Accordingly, it is recommended that Petitioner's Motions for injunctive relief, ECF Nos. 15, 26, 32, 37, and 51 be denied. V. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends that the court grant Respondent's Motion to Dismiss. ECF No. 54. Additionally, as explained above, the undersigned recommends that Petitioner's Motions for Injunctive Relief, ECF Nos. 15, 26, 32, 37, and 51, be denied.
IT IS SO RECOMMENDED. August 24, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
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).