Opinion
C/A No.: 5:19-2786-DCC-KDW
10-23-2019
Troy Lee Kilgore, Petitioner, v. Lavern Cohn, Warden, Respondent.
REPORT AND RECOMMENDATION
Troy Lee Kilgore ("Petitioner"), proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. 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 judge. For the reasons that follow, the undersigned recommends that the district judge dismiss the petition in this case without prejudice and without requiring the Respondent to file an answer. I. Factual and Procedural Background
It is unclear whether a request for bail pending the resolution of a state post-conviction action should be filed under 28 U.S.C. §§ 2241 or 2254. See Brown v. Leeke, 460 F. Supp. 947, 949 (D.S.C. 1978) (finding that petitioner's request for bail pending the resolution of the appeal of the denial of his post-conviction act petition should be denied under §§ 2241 or 2254).
Petitioner was convicted of murder and assault and battery. ECF No. 1-1 at 1. He filed this petition alleging that the state court improperly denied his request for bond pending the resolution of his post-conviction relief proceedings. ECF No. 1 at 2, 6. Petitioner seeks to be released on bond. Id. at 7. The state court denied Petitioner's "Motion for Supercede Bond, Pursuant to S.C. Code Ann. Sec. 18-1-90" on July 23, 2019, stating:
The Motion is denied because the Section cited by Applicant does not apply to a PCR and states that 'Bail may be allowed to the defendant in all in cases in which the appeal is form the trial, conviction or sentence for a criminal offense.' The current matter is a civil action for Post Conviction relief and does not involve an Appeal. Therefore, Applicant's Motion is denied and no hearing in necessary for the Court to make a determination in this matter.ECF No. 1-1 at 4 (errors in original). II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se pleadings 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 pleading 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 pleading, 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 a pro se party 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 that 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).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
B. Analysis
1. Failure to Exhaust
A state prisoner seeking habeas relief through 28 U.S.C. § 2241 or § 2254 must first exhaust his state court remedies. 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 Ky., 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 Picard v. Connor, 404 U.S. 270, 276 (1976).
Petitioner has not shown he has exhausted his state law remedies with respect to his habeas claim. In fact, Petitioner admits he did not appeal the denial of his motion for bond. See ECF No. 1 at 2. Because Petitioner has not exhausted his state court remedies, this Petition should be summarily dismissed. See Galloway v. Stephens, 510 F. Supp. 840, 846 (M.D.N.C. 1981) ("When state court remedies have not been exhausted, absent special circumstances, a federal habeas court may not retain the case on its docket, pending exhaustion, but should dismiss the petition.").
Further, Petitioner's post-conviction relief action remains pending in the South Carolina courts.
2. Younger Abstention
To the extent Petitioner seeks federal court intervention in his pending post-conviction relief action, his Petition is subject to summary dismissal. In the absence of extraordinary circumstances, a federal court must not interfere with ongoing state criminal proceedings. See Younger v. Harris, 401 U.S. 37, 53-54 (1971); Cinema Blue of Charlotte, Inc., v. Gilchrist, 887 F.2d 49, 50-53 (4th Cir. 1989) (district courts should abstain from constitutional challenges to state judicial proceedings if the federal claims have been or could have been presented in an ongoing state judicial proceeding). The Younger doctrine also applies to pending proceedings in the state court (e.g., pending applications for post-conviction relief) as they are still part of the "pending criminal case" as that terminology is understood under Younger and its progeny. See, e.g., Howell v. Wilson, No. 4:13-2812-JFA-TER, 2014 WL 1233703 (Mar. 25, 2014) (applying Younger to the plaintiff's request that the district court provide direction to state court judges as to the plaintiff's PCR, criminal, and/or DNA testing cases); Smith v. Bravo, No. 99 C 5077, 2000 WL 1051855, *5 (N.D. Ill. 2000) (presuming that Younger abstention would apply to civil case that could interfere with post-conviction proceedings). Abstention in favor of state judicial proceedings is required if the proceedings are ongoing, implicate important state interests, afford an adequate opportunity to raise the federal questions, and the federal relief sought would interfere in some manner with the state court litigation presented. Martin Marietta Corp. v. Md. Comm'n on Human Relations, 38 F.3d 1392, 1396 (4th Cir. 1994) (citing Middlesex Cnty. Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)). III. Conclusion and Recommendation
Accordingly, the undersigned recommends the court dismiss the Petition without prejudice and without requiring the Respondent to file a return.
IT IS SO RECOMMENDED. October 23, 2019
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and 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 2317
Florence, South Carolina 29503
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).