Summary
In Johnson v. Jackson, No. 8:22-CV-4550-DCC-JDA, 2022 WL 20044251 (D.S.C. Dec. 29, 2022), report and recommendation adopted, 2023 WL 3818547 (D.S.C. June 5, 2023), the petitioner filed a § 2254 petition contending he was illegally confined because he had already completed his sentence.
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C. A. 8:22-cv-4550-DCC-JDA
12-29-2022
Brandon Johnson, Petitioner, v. Warden Shane Jackson, Respondent.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Brandon Johnson (“Petitioner”), proceeding pro se, brings this habeas corpus action under 28 U.S.C. § 2254. Petitioner is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is presently confined at the Lee 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 by filing a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on the standard court form (the “Petition”). [Doc. 1.] Petitioner alleges he was convicted in the Charleston County Court of General Sessions in September 2008 at case numbers 2005-GS-18-1146 and 2006-GS-10-11831 and sentenced to a term of imprisonment of 15 years for trafficking cocaine, possession of a firearm during the commission of a violent crime, and criminal sexual conduct. [Id. at 1.] Petitioner alleges he pled guilty to these charges. [Id.] It does not appear that he filed a direct appeal. [Id. at 1-2.] Petitioner alleges he filed an application for post-conviction relief (“PCR”) in the Charleston County Court of Common Pleas asserting that he is being illegally confined as he has already completed his sentence. [Id. at 3.] Petitioner contends that action remains pending. [Id. at 5.]
As explained below, Petitioner has filed an appeal in the South Carolina Court of Appeals which remains pending rather than a PCR action.
Petitioner asserts the following grounds in the present Petition:
GROUND ONE: Illegal Confinement
Supporting Facts: [Petitioner] has already completed his 15 year sentence.[Id.] For his relief, Petitioner seeks immediate release from custody. [Id. at 15.]
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in the above-captioned 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).
Petitioner filed this action in forma pauperis under 28 U.S.C. § 1915. This statute authorizes the Court to dismiss a case if it is satisfied that the action fails to state a claim on which relief may be granted, is frivolous or malicious, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Further, 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).
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) (per curiam). 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
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). 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).
This action is subject to summary dismissal because Petitioner has not exhausted his state court remedies. The exhaustion of state court remedies is required by 28 U.S.C. § 2254(b)(1)(A), which provides that “[a]n 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 ....” 28 U.S.C. § 2254(b)(1); Straws v. Padula, No. 4:09-cv-009-HFF-TER, 2009 WL 691190, at *2 (D.S.C. Mar. 16, 2009). “The exhaustion requirement is ‘grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.'” Washington v. Cartledge, No. 4:08-cv-4052-PMD, 2010 WL 1257356, at *1 (D.S.C. Mar. 29, 2010) (quoting Coleman v. Thompson, 501 U.S. 722, 731 (1991)). As the Fourth Circuit Court of Appeals has explained, “a federal habeas court may consider only those issues which have been ‘fairly presented' to the state courts.” Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir. 1997) (instructing that, “to satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court. The burden of proving that a claim has been exhausted lies with the petitioner.”) (citations omitted).
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). To exhaust state court remedies in South Carolina from a criminal conviction or sentence, a defendant may file a direct appeal. 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, the Petition is subject to summary dismissal because Petitioner has failed to exhaust his state court remedies. The Court will begin with a brief summary of Petitioner's state court criminal proceedings. In June 2006, Petitioner was charged in the Charleston County Court of General Sessions with 1st degree criminal sexual conduct (“CSC”) at case number K130222. See State v. Johnson, No. K130222, available at the Charleston County Public Index, https://jcmsweb.charlestoncounty.org/PublicIndex/PISearch.aspx (search by case number “K130222”) (last visited Dec. 28, 2022). The Charleston County grand jury indicted Petitioner as to that charges at indictment number 2006GS1011831. Id. Petitioner pled guilty to the CSC charge and, on May 7, 2014, the Honorable R. Markley Dennis sentenced Petitioner to a 15-year term of imprisonment.
The Court takes judicial notice of Petitioner's state court actions including the original criminal proceedings, his applications for post-conviction relief, and his appeals from those actions. 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.'”).
Petitioner was also charged in the Dorchester County Court of General Sessions in August 2005 with trafficking in cocaine at case number J090427 and with unlawful carrying of a pistol at case number J090424. See State v. Johnson, Nos. J090427 and J090424, available at the Dorchester County First Judicial Circuit Public Index, https://publicindex.sccourts.org/Dorchester/PublicIndex/PISearch.aspx (search by case numbers “J090427” and “J090424”) (last visited Dec. 28, 2022). In September 2005, a grand jury indicted Petitioner as to those charges, respectively, at indictment numbers 2005GS1801146 and 2005GS1801143. Id.
After serving a portion of his sentence, Petitioner was released on community supervision. Thereafter, he was arrested for a probation violation. Id. Petitioner's community supervision was revoked and he was sentenced to a one-year term of imprisonment. Id.; see also State v. Johnson, No. 2022-001424 (S.C. Ct. App. Oct. 10 2022), available at https://ctrack.sccourts.org/public/caseSearch.do (Search by case number “2022-001424”) (last visited Dec. 29, 2022). Petitioner filed an appeal in the South Carolina Court of Appeals at case number 2022-001424. That appeal remains pending.
The Court of Appeals docket indicates that the appeal is taken from an order revoking community supervision dated September 29, 2022, in case numbers 2006-GS-10-11831 and 2005-GS-18-01146.
As noted, Petitioner acknowledges that his state court appeal related to his current sentence remains pending. [Doc. 1 at 5-6.] Therefore, because Petitioner's appeal remains pending in the state court, he cannot demonstrate exhaustion of his state remedies as required by the federal habeas statute. See Boone v. Eagleton, No. 5:17-cv-01160-RMG-KDW, 2017 WL 2729861, at *3 (D.S.C. May 31, 2017), Report and Recommendation adopted by 2017 WL 2731314 (D.S.C. June 23, 2017); Richardson v. Eagleton, No. 4:08-cv-3557-RBH-TER, 2009 WL 3523945, at *2 (D.S.C. Oct. 23, 2009) (dismissing habeas petition where the petitioner's appeal was pending and had not been ruled on by the state appellate courts and noting “he has not exhausted his state court remedies” because “he still has a viable state court remedy which has not been fully utilized”). As such, this Court should not keep this case on its docket while Petitioner finishes exhausting his state remedies. See Hubbard v. Virginia, No. 7:10-cv-00273, 2010 WL 2605351, at *2 (W.D. Va. June 25, 2010) (dismissing action where it was clear that the petitioner had available state court remedies, including his pending appeal in the state court of appeals). For these reasons, the instant Petition is subject to summary dismissal without prejudice.
RECOMMENDATION
Accordingly, 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).