Opinion
C. A. 8:21-cv-02407-SAL-JDA
08-20-2021
Kenneth Syncere Rivera, Petitioner, v. Warden of Broad River, Respondent.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
Kenneth Syncere Rivera (“Petitioner”), proceeding pro se, brings this habeas corpus action 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. For the reasons below, this action is subject to summary dismissal.
BACKGROUND
Petitioner makes the following allegations in his Petition. [Doc. 1.] Petitioner was convicted after pleading guilty to the charge of possession of contraband by a prisoner in the Richland County Court of General Sessions at case number 2019-GS-40-07909 and was sentenced on December 3, 2019, to a term of imprisonment of 1 year. [Id. at 1.]
The Court takes judicial notice of Plaintiff's state court criminal and post-conviction relief actions. See Philips v. Pitt Cty. 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 contends he filed an appeal, which was dismissed by the South Carolina Court of Appeals and then by the South Carolina Supreme Court. [Id. at 2.] Petitioner then filed a post-conviction relief (“PCR”) action on February 10, 2020, in the Richland County Court 1 of Common Pleas at case number 2020-cp-40-0791. [Id. at 3.] That action was dismissed on June 9, 2021. [Id. at 6.]
Petitioner asserts a single ground for habeas relief in his Petition. Petitioner asserts he was subjected to double jeopardy because he was convicted for possession of a weapon twice. [Id. at 5.] For his relief, Petitioner asks that the Court remove his conviction from his record. [Id. at 15.] Petitioner has attached to his Complaint a copy of the final order of dismissal in the state PCR action. [Doc. 1-1.]
STANDARD OF REVIEW
A careful review has been made of the pro se Petition filed in this case under established local procedure in this judicial district and pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. 104-132, 110 Stat. 1214. Petitioner filed this action in forma pauperis under 28 U.S.C. § 1915, which 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). 2
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
In this habeas action under 28 U.S.C. § 2254, Petitioner seeks to vacate his conviction in the state court for possession of contraband because he was also convicted in a prison disciplinary hearing for the same crime, purportedly in violation of the Double Jeopardy Clause of the United States Constitution. The undersigned finds that the Petition is frivolous on its face, and Petitioner is not entitled to the relief he seeks.
Plaintiff has failed to raise a cognizable double jeopardy claim because prison disciplinary proceedings are not part of a criminal prosecution. Washington v. McCall, No. 1:10-cv-1402-HFF-SVH, 2010 WL 2679734, at *2 (D.S.C. June 24, 2010) (collecting cases), Report and Recommendation adopted by 2010 WL 2679733 (D.S.C. July 6, 2010). It is well settled that “the Double Jeopardy Clause does not apply to prison disciplinary actions.” Coles v. Washington, No. 3:11-cv-194, 2012 WL 443543, at *4 (E.D. Va. Feb. 10, 2012) (collecting cases); see also United States v. Green, 508 Fed.Appx. 206, 207 (4th Cir. 2013) (rejecting inmate's argument on direct appeal that the Double Jeopardy Clause protected the inmate from being indicted for the same misconduct that resulted in prison 3 disciplinary sanctions). And, “‘prison discipline does not preclude a subsequent criminal prosecution or punishment for the same acts,' even if the prison discipline lengthens the prisoner's term of incarceration.” Lindsey v. McKie, No. 9:11-cv-695-MBS, 2012 WL 932017, at *6 (D.S.C. Mar. 19, 2012) (citation omitted). Accordingly, Petitioner's allegations fail to assert a cognizable claim on the face of the Petition. The instant Petition is therefore subject to summary dismissal.
RECOMMENDATION
Accordingly, it is recommended that this action be dismissed without requiring the Respondent to file an answer or return.
IT IS SO RECOMMENDED. 4
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). 5