Opinion
C. A. 8:21-cv-00899-JD-JDA
10-27-2021
Anthony Derome Richardson, Petitioner, v. Warden of Trenton Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
This matter is before the Court on a motion to dismiss filed by the Warden(“Respondent”) of Trenton Correctional Institution (“Trenton”). [Doc. 18.] Anthony Derome Richardson (“Petitioner”), proceeding pro se and in forma pauperis, brought this action seeking habeas corpus 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., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Judge.
Petitioner commenced this action by filing a Petition for writ of habeas corpus on March 26, 2021. [Doc. 1.] On June 11, 2021, Respondent filed a return and memorandum to the Petition and a motion to dismiss. [Docs. 17; 18.] On June 14, 2021, the Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (“Roseboro Order”), advising Petitioner of the summary judgment/dismissal procedure and the possible consequences if he failed to adequately respond to the motion. [Doc. 19.]
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). The clerk of court received the Petition on March 29, 2021, and opened the case that same day. Petitioner's documents were not stamped by the prison mailroom with the date the pleadings were delivered to prison authorities for forwarding. However, the Petition is dated March 26, 2021, and the envelope is postmarked with that same date. [Docs. 1 at 15 (Petition dated March 26, 2021); 1-1 at 1 (envelope postmarked on March 26, 2021).] Accordingly, the undersigned considers the date of filing of this action to be March 26, 2021.
On June 21, 2021, Petitioner filed a notice of change of address and a motion for extension of time to file a response to the return and motion to dismiss. [Docs. 21; 23.] Petitioner's address was updated on the docket and, on July 12, 2021, the Court granted Petitioner an extension of time to file a response to the motion to dismiss. [Doc. 25.]
When Petitioner commenced this action, he was incarcerated at Trenton. [Doc. 1 at 1.] In his notice of change of address, Petitioner explained that he had been released from prison on June 1, 2021. [Doc. 21.] The undersigned notes that, although Petitioner was released from prison on June 1, 2021, he did not update his address with the Court until June 21, 2021, despite having been warned to do so. [See Doc. 5 at 2 (“You are ordered to always keep the Clerk of Court advised in writing . . . if your address changes for any reason, so as to assure that orders and other matters that specify deadlines for you to meet will be received by you.”) (emphasis in original).]
Then, on August 6, 2021, Petitioner filed a motion to dismiss the Roseboro Order, arguing that it was not mailed to his current address. [Doc. 27.] By Order dated August 10, 2021, the undersigned declined to dismiss the Roseboro Order but directed the Clerk to mail the Roseboro Order to Petitioner at his current address and gave him an additional 31 days to respond to the motion to dismiss. [Doc. 28.] The new deadline for Petitioner's response to the motion to dismiss was September 10, 2021; however, Petitioner did not file a response. Accordingly, the undersigned entered an Order dated September 20, 2021, granting Petitioner one final opportunity to file a response and warning him that, if he failed to respond, this action would be subject to dismissal for failure to prosecute and for failure to comply with the Court's orders, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. [Doc. 32.]
Petitioner then filed a response in opposition to the motion to dismiss on October 1, 2021. [Doc. 34.] Respondent filed a reply on October 8, 2021. [Doc. 35.]
Respondent's motion to dismiss is ripe for review. Having carefully considered the parties' submissions, the record in this case, and the records from Petitioner's state criminal cases, the undersigned concludes that Respondent's motion to dismiss should be granted for the reasons below.
The Court takes judicial notice of the records in Petitioner's state court cases and the other cases he has filed in this Court. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining 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.'”).
BACKGROUND
Allegations in Petition
As noted, Petitioner filed a Petition under 28 U.S.C. § 2254 seeking habeas relief.
[Doc. 1.] Petitioner contends he is challenging a conviction in the Union County Court of General Sessions for multiple counts of distributing counterfeit CDs and DVDs (the “counterfeit recording conviction”). [Id. at 1.] According to Petitioner, after pleading guilty to those charges, he was sentenced to a term of probation. [Id.] Petitioner asserts that he was sentenced pursuant to a plea agreement and that, in exchange for his guilty plea, his probation was to terminate on the day of sentencing after he paid the fine imposed by the sentencing judge. [Id. at 2.]
In his Petition, Petitioner alleges he was convicted on five counts of distributing counterfeit CDs and DVDs. [Doc. 1 at 1.] However, records from the state court show that he was actually convicted of only three counts. Specifically, Petitioner pled guilty to three counts of illegal distribution of recordings at indictment numbers 2011-gs-44-0344, -0345, and -0347 in the Union County Court of General Sessions. [Doc. 17-1 at 6-7, 68-73.] This discrepancy is immaterial to the Court's decision, and the undersigned understands that Petitioner is challenging his convictions as to all counts, regardless of the actual number for which he was convicted.
In his Petition, Petitioner alleges that he was sentenced on January 12, 2021, for the convictions he is challenging in this action. [Doc. 1 at 1.] However, records from the state court show that he was actually sentenced on December 5, 2011. [Doc. 17-1 at 3, 10.]
Petitioner has not identified any specific grounds for habeas relief in his Petition. In fact, as to the question on the habeas form asking what his grounds for relief are, he wrote simply, “[I d]on't know.” [Id. at 5.] However, liberally construing the Petition, the undersigned concludes that Petitioner may be alleging that his trial counsel failed to properly file a direct appeal from his conviction and sentence, constituting ineffective assistance of counsel. [See, e.g., id. at 3, 7, 13.] For his relief, Petitioner asks that the Court “overturn [the] lower court remitted de[cis]ion.” [Id. at 15.]
Petitioner's Criminal Convictions and History of Confinement
Newberry County Case Number 2020-GS-36-00021
When Petitioner filed this action, he was in the custody of the South Carolina Department of Corrections (“SCDC”) and incarcerated at Trenton. [Doc. 1 at 1.] Petitioner's incarceration at the time of filing was based on a conviction for reckless homicide in the Newberry County Court of General Sessions at case number 2020-GS-36-00021 (the “reckless homicide conviction”). [Doc. 17-14.] Specifically, after pleading guilty to the reckless homicide charge, Petitioner was sentenced on August 5, 2020, to a term of imprisonment of 5 years. [Id. at 2.] Petitioner was released from incarceration on June 1, 2021, pursuant to a Supervised Reentry Release Program Certificate under the supervision of the South Carolina Department of Probation, Parole and Pardon Services. [Docs. 17-13; 21.] Petitioner remains on supervision, which is set to expire on December 5, 2021. [Doc. 17-13.]
Petitioner does not appear to challenge the reckless homicide conviction or his current supervised release status in the present action. Instead, he challenges his prior counterfeit recording conviction and sentence in Union County, as explained below.
Union County Case Numbers 2011-GS-44-0344, -0345, and -0347
In December 2011, the Union County grand jury issued indictments against Petitioner for three counts of illegal distribution of counterfeit recordings at case numbers 2011-GS-44-0344, -0345, and -0347. [Doc. 17-1 at 6-7, 68-73.] Petitioner pled guilty to all three counts on December 5, 2011. [ Id. at 8-9.] That same day, the Honorable John C. Hayes, III, sentenced Petitioner to a one-year term of imprisonment, which was suspended to a one-year term of probation that would be terminated upon the payment of $100 plus court costs and assessments. [Id. at 10.] On December 16, 2011, Petitioner's attorney filed a notice of appeal [id. at 61], but the South Carolina Court of Appeals dismissed the appeal on February 18, 2013, for failure to timely serve opposing counsel with the notice of appeal [id. at 63].
Appellant has failed to timely serve opposing counsel with the notice of appeal, as required by Rule 203 of the South Carolina Appellate Court Rules. Accordingly, this matter is dismissed. The remittitur will be sent as provided by Rule 221(b), SCACR. The dispositional order of the Court of Appeals, at Appellate Case Number 2012-213609, states, in full:
On March 6, 2013, Petitioner filed an application for post-conviction relief (“PCR”) in the Union County Court of Common Pleas. [Id. at 12-18.] In his PCR application, Petitioner alleged that he was “not in custody.” [Id. at 13.] On April 18, 2013, the State filed a return and motion to dismiss Petitioner's PCR application. [ Id. at 19-22.] On May 9, 2013, the Honorable Lee S. Alford entered a conditional order of dismissal, requiring Petitioner to show cause why the PCR application should not be dismissed. [Id. at 24-27.] Thereafter, on November 18, 2014, the Honorable Allison Lee conducted an evidentiary hearing on Petitioner's PCR action. [Id. at 29-57.] On October 6, 2017, the Honorable Letitia Verdin entered an order denying Petitioner's request for PCR relief and dismissing the PCR application with prejudice, but she granted Petitioner a belated appeal. [Id. at 62-67.] Petitioner then appealed the order of dismissal.
On January 20, 2021, the South Carolina Court of Appeals dismissed Petitioner's appeal from the PCR Court's order of dismissal, but proceeded to review his direct appeal issue as follows:
Petitioner seeks a writ of certiorari from the denial of his application for post-conviction relief (PCR). Because there is sufficient evidence to support the PCR court's finding that Petitioner did not knowingly and intelligently waive his right to a direct appeal, we grant certiorari as to Petitioner's PCR issue and proceed with a review of his direct appeal issue pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986). We deny certiorari as to Petitioner's pro se issue.
On direct appeal, Petitioner argues the plea court erred in accepting his guilty pleas as knowingly and voluntarily entered because sentencing consequences were not explained to him during the plea proceeding. However, because no contemporaneous objection was made, this issue is unpreserved for appellate review.... Accordingly, after review pursuant to Anders v. California, 386 U.S. 738 (1967), we dismiss Petitioner's direct appeal.[Doc. 17-11 at 1-2.] The Court of Appeals issued a Remittitur on February 10, 2021. [Doc. 17-12.] Petitioner then commenced the present habeas action by filing a Petition on March 26, 2021. [Doc. 1.]
STANDARD OF REVIEW
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).
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). 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 determination of the facts in light of the evidence presented in the State court proceeding.28 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).
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.
(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.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). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds for relief be stated in the direct appeal or PCR application. S.C. App. Ct. R. 203; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment. S.C. R. Civ. P. 59(e). Failure to do so will result in the application of a procedural bar to that claim by the Supreme Court of South Carolina. Marlar v. State, 653 S.E.2d 266 (S.C. 2007). Further, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. For direct appeal, a notice of appeal must be filed and served on all respondents within ten days after the sentence is imposed or after receiving written notice of entry of the order or judgment. S.C. App. Ct. R. 203(b)(2), (d)(1)(B). A PCR application must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
In Bostick v. Stevenson, 589 F.3d 160 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007 decision in Marlar, South Carolina courts had not uniformly and strictly enforced the failure to file a motion pursuant to Rule 59(e) as a procedural bar. 589 F.3d at 162-65. Accordingly, for matters in which there was a PCR ruling prior to November 5, 2007, the Court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.
If any avenue of state relief is still available, the petitioner must proceed through the state courts before requesting a writ of habeas corpus in the federal courts. Richardson v. Turner, 716 F.2d 1059, 1062 (4th Cir. 1983); Patterson v. Leeke, 556 F.2d 1168 (4th Cir. 1977). Therefore, in a federal petition for habeas relief, a petitioner may present only those issues that were presented to the Supreme Court of South Carolina through direct appeal or through an appeal from the denial of a PCR application, regardless of whether the Supreme Court actually reached the merits of the claim.
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.
The Supreme Court of South Carolina will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. See S.C. Code Ann. § 1727-90; Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding in state court. S.C. App. Ct. R. 203(d)(3), 243. 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. See Reed v. Ross, 468 U.S. 1, 11 (1984); see also Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995). As the United States Supreme Court explained:
. . . [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, 468 U.S. at 10-11.
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, 66 F.3d at 1363.
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 (citing Coleman, 501 U.S. at 735 n.1; Teague, 489 U.S. at 297-98; George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
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).
Statute of Limitations
Under the AEDPA, petitioners have one year to file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The limitations period runs from the latest of four dates:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.Id. § 2244(d)(1)(A)-(D). However, the statute tolls the limitations period during the time “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2).
An application for post-conviction or other collateral review is not properly filed if the application is untimely under state law. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a post conviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).” (alteration in original)). In Pace, the United States Supreme Court held that time limits on filing applications for post-conviction or collateral review are filing conditions, no matter the form of the time limit. Id. at 417. Therefore, if an application for post-conviction or collateral review is barred by a state statute of limitations, statutory tolling under § 2244(d)(2) does not apply because the application was not properly filed.
The Supreme Court recently recognized that the limitations period may be equitably tolled if the petitioner shows (1) he has been diligently pursuing his rights and (2) some extraordinary circumstance stood in his way, preventing him from timely filing his habeas petition. Holland v. Florida, 560 U.S. 631, 648 (2010) (quoting Pace, 544 U.S. at 418). Therefore, “specific circumstances . . . could warrant special treatment in an appropriate case” such that the limitations period is not strictly applied. Id. at 650.
DISCUSSION
The Parties' Arguments
As noted, Respondent has filed a motion to dismiss the Petition filed in this matter. [Doc. 18.] In support of the motion, Respondent argues that Petitioner cannot satisfy the “in custody” requirement for his challenged conviction and that this Court therefore lacks subject matter jurisdiction. [Doc. 17 at 10-11.] Additionally, Respondent argues that, even if the Court were to find that it had subject matter jurisdiction in this case, the Petition would still be subject to dismissal pursuant to Rule 12(b)(6) because Petitioner has failed to set forth a cognizable claim for which relief can be granted. [Id.]
Respondent appears to concede that Petitioner exhausted his available state court remedies prior to commencing the instant action and that he timely filed this action within the time permitted by the applicable statute of limitations. [Doc. 17 at 5-7.] Because these issues are not germane to the dispositive issue before the Court, the undersigned assumes, without deciding, that Petitioner has exhausted his available state court remedies and that the Petition was timely filed.
In response, Petitioner simply argues that the motion to dismiss should be denied because he was not properly served with the motion. [Doc. 34.] However, Petitioner advances no argument concerning the specific grounds for dismissal raised by Respondent in the motion to dismiss.
The “In Custody” Requirement
As noted, 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). The applicable federal habeas statute provides that a writ of habeas corpus is available only if a prisoner demonstrates that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). Thus, a habeas petitioner must be “in custody” under the conviction or sentence under attack at the time the petition is filed. Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Because a prisoner can utilize habeas corpus proceedings only if he is challenging the fact or duration of his present confinement, Preiser, 411 U.S. at 489, “[f]ederal courts lack jurisdiction to consider a habeas petition challenging a sentence which has fully expired at the time the petition is filed, ” Hardy v. Warden, No. 6:06-cv-1796-HMH-WMC, 2006 WL 2996107, at *3 (D.S.C. Oct. 19, 2006).
“[T]o meet the jurisdictional ‘in custody' requirement, a § 2254 petitioner need not be in actual physical custody of state authorities at the time a habeas petition is filed.” Mainali v. Virginia, 873 F.Supp.2d 748, 751 (E.D. Va. 2012). “[I]t is well-settled that an ongoing term of probation or parole is a sufficient restraint on a petitioner's liberty to allow the petitioner to attack a state sentence on constitutional grounds pursuant to § 2254.” Id. Indeed, the Fourth Circuit recently noted that “[t]he existence of certain ‘collateral consequences' to the petitioner's conviction prevents a habeas petition from becoming moot” and that “[t]he mere ‘possibility of consequences collateral to the imposition of sentence is sufficiently substantial to justify our dealing with the merits.'” Plymail v. Mirandy, 8 F.4th 308, 315 (4th Cir. 2021), as amended (Sept. 7, 2021) (citation omitted). The Court further noted, “restrictions imposed by the terms of parole may also suffice.” Id.
Analysis
Here, Respondent asserts that the Court lacks jurisdiction over this action because Petitioner is no longer in custody for the counterfeit recording conviction. The Court agrees.
As noted, Petitioner was convicted on three counts of distributing counterfeit recordings and was sentenced on December 5, 2011, to a one-year term of imprisonment suspended to probation for one year, which would be terminated upon the payment of $100 plus fees and costs. Petitioner was never incarcerated on that sentence, and his sentence appears to have expired on December 5, 2012, one year after the sentence was imposed. Petitioner has not alleged-and there is no evidence in the record to suggest-that he is presently serving his sentence, rendered in 2011, or that any collateral consequences remain from his sentence that would satisfy the “in custody” requirement. Therefore, Petitioner cannot satisfy the “in custody” requirement of the habeas statute to demonstrate that this Court has jurisdiction.
Although Petitioner does not offer any argument in the present case as to his current custody status on the counterfeit recording conviction, the undersigned notes that Petitioner argued in his state PCR action that his sentence had been “stayed” while he appealed the conviction and that he never completed his probationary sentence or paid the fine imposed by the sentencing court. At the evidentiary hearing in the state PCR action held by Judge Lee on November 18, 2014, Petitioner testified as follows in response to questions from his PCR counsel concerning the status of his sentence:
Q On that date that you plead which was December 5, 2011, within the ten [days] of that date, did your attorney file an appeal, a Notice of Appeal on your behalf?
A He suppose to have did . . . [but] it was dismissed.
Q And so from that point what if anything happened with your case?
A At a standstill. That's about it....
Q Okay. So after you talked to [your attorney] and he informed you that the appeal, the Notice of Appeal was not filed timely . . . you went on with the sentence? . . . [A]s far as your sentence that you received from the Court, what, if anything, did you do as it relates to your fine that you had to pay, the fees that you had to pay and the probation?
A Well, they transferred the case back to Newberry . . .and that's when my probation officer said he had to call Joseph and find out what his procedure, because he had never had a case transferred from one county to the next . . .
Q So in essence what I am trying to get at you had to pay the fines, the fees and the fines?
A I had to pay them, right but I didn't pay them because the appeal was in effect . . . I did not [ ] pay the fine . . .
Q Okay. Did you finish the probation?
A No, ma'am. The probation officer said that once you file an appeal your probation stops. In other words when you file [an] appeal it stops it until the [Appellate] Court finds out what they are going [to] do with the case. So they told me at this time I don't have to report
until they get a letter from the Appeals Court, the Court telling them what they need to do.
Q And since your case was dismissed, . . . they stayed your probation? They held your probation?
A Right, that's what I have been instructed by the probation officer in Newberry. He said it was stayed until he gets a letter from the court because I think there was a transition down there. A new guy. And he said that I would call you to let you know what you do from there and . . . he called me on the phone. I went back to probation officer and he told me they will have to stay the case until they get an Order from the Court.[Doc. 17-1 at 41-43.] On cross-examination, Petitioner further testified as follows:
Q . . . Are you currently on probation?
A According to Newberry they said that the probation stopped. So right now according to them what they advised me that it's on a standstill. Whatever that mean[s]. I take that as I am not.
Q So you've never been on this probation for this charge?
A Right, when they transferred from Union to Newberry I was on it until, like I said, my public defender called Joseph on the phone to find out what he needed to do with the case.
Q Currently are you reporting to a probation officer on this case?
A No, sir.
Q So you are not on probation? You're free and clear as to this case as we speak right now?
A My probation officer advised me it's at a standstill until the appeal - whatever they said from the Court.
Q So what they're saying [is] it's hanging over your head?
A That's basically what they're saying . . That's what my probation officer said.
Q That's [what] your understanding is?
A Right.[ Id. at 45-46.] At the conclusion of the testimony at the PCR hearing, the attorney for the State explained as follows with regard to the probation issue:
And Your Honor, I just e-mailed our expert on probation department and parole services. The reason I asked [Petitioner] if he is currently on probation [was] to see whether or not this case is moot. If there is no probation hanging over his head there is no effect on him. He's free and clear and probation messed up and they will be the ones that have to bite the bullet.
I am trying to figure out if he is facing any repercussions whatsoever, and . . . I would ask to leave the record open to see if I can move to dismiss for mootness.[Id. at 55.] In response, Petitioner's PCR counsel explained as follows:
Your Honor, I think probation - I think it is still hanging over his head. As to whether it is going forward I would have to look back at the case. There is a case that Justice Baity [sic] wrote and it came out . . . in April of 2014 or . . . 2013 that talks about tolling the statute on probation and what happens in those instances . . ., but I would argue that he would still be looking at probation until he pays those fines that are basically on the sentencing sheet that he has to pay.[Id. at 55-56.] Judge Lee explained that she would leave the record open on the issue of Petitioner's probation status. [Id. at 56.] However, it does not appear that the record was supplemented to include any additional evidence, records, or testimony on the status of Petitioner's sentence or probation. Then, by Order dated March 1, 2016, Judge Lee concluded that, due to the length of time that the record had remained open, the PCR court would no longer retain jurisdiction of the matter, and it was rescheduled for a hearing on August 10, 2016, before Judge Verdin. [Id. at 62.] At that hearing, the parties agreed to submit the entire lower court record along with the transcript from the initial PCR hearing to Judge Verdin for her to rule upon. [Id.] Judge Verdin then issued an order of dismissal on September 22, 2017. [ Id. at 62-67.]
In South Carolina, a sentence for a term of imprisonment suspended to probation is considered a sentence of confinement. State v. Gibbs, 577 S.E.2d 454, 455 (S.C. 2003). However, in order to stay the probationary sentence during the appeal process, the defendant must post an appeal bond to be relieved of that probationary sentence pending appeal. Id. A defendant who has been convicted of a crime and released on bail pending the disposition of an appeal satisfies the “in custody” requirement of the habeas statute. See, e.g., Hensley v. Mun. Court, 411 U.S. 345, 352-53 (1973).
As noted, Petitioner has not argued in the present action that he is in custody or that his sentence has not expired. Further, the undersigned is unable to find any information or records from the state court, other than Petitioner's testimony at his PCR hearing, indicating that his sentence has not already expired or that it was stayed for any period of time pending an appeal. There is no evidence showing that Petitioner was released on bail or an appeal bond pending the disposition of his appeal. Without an appeal bond staying the execution of Petitioner's sentence, his term of probation expired one year after he was sentenced in the state court.
Thus, based on a review of the entire record before the Court, the undersigned concludes that Petitioner's sentence to one year of probation commenced on December 5, 2011, and his sentence expired on December 5, 2012. “Th[e] custody requirement is not met when the inmate challenges an expired sentence.” Robinson v. Laughlin, No. PJM-10-cv-1800, 2010 WL 3834959, at *1 (D. Md. Sept. 28, 2010). The Court therefore finds that Petitioner has failed to show that he is in custody under the conviction and sentence that he now seeks to challenge and the Court therefore lacks subject matter jurisdiction. See Fields v. Cartledge, No. 0:16-cv-2463-TMC, 2017 WL 3140910, at *3 (D.S.C. July 25, 2017).
Further, to the extent Petitioner may be arguing that his sentence is not expired because he has not paid the fine and costs associated with his conviction and sentence, any such argument is without merit. Penalties, such as fines, “that do not provide a restraint or the imminent threat of restraint do not meet the custody requirement.” McClenny v. Murray, 33 F.3d 52 (4th Cir. 1994), on reh'g, 51 F.3d 267 (4th Cir. 1995). “Because there is only a remote and speculative possibility that a court will resort to imprisonment in fine-only convictions, and because individuals subject to fines maintain greater control over the threat of imprisonment, habeas relief is not available in those cases.” Id.
Accordingly, because Petitioner is no longer serving the sentence imposed upon him, and because he is no longer on probation or parole, nor is he subject to probation or parole supervision or otherwise confined to state custody for the conviction he challenges, he is not “in custody” for purposes of the habeas statute to satisfy subject matter jurisdiction over his Petition in this Court. Singleton v. Eagleton, No. 2:12-cv-02339-GRA-BHH, 2013 WL 4436409, at *6 (D.S.C. Aug. 15, 2013).
RECOMMENDATION
Therefore, based upon the foregoing, the undersigned recommends that Respondent's motion to dismiss [Doc. 18] be GRANTED and the Petition be DISMISSED for lack of jurisdiction.
IT IS SO RECOMMENDED.