Opinion
C. A. 6:22-cv-02936-CMC-KFM
12-01-2022
Willie Young, Petitioner, v. Warden Evans Correctional Institution, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
The petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2254 for habeas relief. 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 Court. For the reasons set forth below, it is recommended that the petitioner's § 2254 petition be summarily dismissed.
ALLEGATIONS
Petitioner's Conviction and Sentence
The petitioner is currently serving a sentence of thirty years' imprisonment for armed robbery. See Orangeburg County Public Index, https://publicindex.sccourts.org/ Orangeburg/PublicIndex/PISearch.aspx (enter the petitioner's name and G731578) (last visited November 30, 2022). The petitioner appealed, and the conviction and sentence were affirmed. Id.; State of S.C. v. Young, C/A No. 2003-UP-564 (S.C. Ct. App. Sept. 29, 2003).
The court takes judicial notice of the records in the petitioner's criminal case in the Orangeburg County General Sessions Court, as well as the petitioner's post-conviction relief actions in the Orangeburg County Court of Common Pleas and prior actions in this court brought pursuant to § 2254. See Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (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's Prior Collateral Attacks in the State Court
On December 23, 2003, the petitioner filed a post-conviction relief (“PCR”) action in the Orangeburg County Court of Common Pleas. See Orangeburg County Public Index (enter the petitioner's name and 2003-CP-38-01585) (last visited November 30, 2022). In the PCR, the petitioner asserted ineffective assistance of counsel (“IAC”) based upon failing to request a jury charge for a lesser included offense and lack of subject matter jurisdiction. Id. The petitioner's PCR was denied in June 2005. Id. The petitioner appealed, and the petitioner's case was transferred to the South Carolina Court of Appeals and dismissed on April 20, 2007. Id.
After the denial of his first federal habeas petition, outlined infra, on December 13, 2010, the petitioner filed a second PCR action in the Orangeburg County Court of Common Pleas. See Orangeburg County Public Index (enter the petitioner's name and 2010-CP-38-01759) (last visited November 30, 2022). The petition was dismissed on July 25, 2012, and the petitioner did not appeal. Id. The petitioner filed a third PCR action in the Orangeburg County Court of Common Pleas on June 28, 2013. See Orangeburg County Public Index (enter the petitioner's name and 2013-CP-38-00757) (last visited November 30, 2022). The third PCR action was dismissed on March 31, 2015. Id. The petitioner appealed, but his appeal was denied. Id.
The petitioner then filed a motion for a new trial in the third PCR action based upon newly-discovered evidence on August 10, 2016. Id. The motion was denied on December 21, 2016. Id. The petitioner appealed the denial of his motion and the South Carolina Court of Appeals affirmed the denial. State v. Young, C/A No. 2017-000557, 2020 WL 5652502 (S.C. Ct. App. 2020). The petitioner appealed that decision, and his petition for a writ of certiorari was denied. State of S.C. v. Young, C/A No. 2021-000056 (S.C. Dec. 10, 2021).
On April 1, 2021, the petitioner appealed the denial of a Step 2 grievance to the South Carolina Administrative Law Court. See Young v. S.C. Dep't of Corrs., C/A No. 21-ALJ-04-0118-AP (S.C. A.L.C.). The petitioner's appeal involved the calculation of his sentence based upon his earned work credits. Id. On August 30, 2021, the Honorable Ralph King Anderson, III, Chief Administrative Law Judge, affirmed the denial of the petitioner's grievance, noting that because the petitioner's offense was a “no parole” offense, he had to serve 85% of his sentence; thus, the petitioner's remaining earned work credits could not be applied to further reduce his sentence because he has to serve 85% of his sentence. Id. The petitioner appealed the order asserting that it was improper, as well as that he is entitled to parole, and that appeal remains pending in the South Carolina Court of Appeals. See Young v. S.C. Dep't of Corrs., C/A No. 2021-001044 (S.C. Ct. App.).
Petitioner's Prior Collateral Attacks in this Court
During this same time, on August 23, 2007, the petitioner filed his first federal habeas petition pursuant to 28 U.S.C. § 2254. Young v. Burt, C/A No. 6:07-cv-02893-CMC (D.S.C.). The petition raised six grounds for relief, including that his conviction was obtained by use of a coerced confession, his due process rights were violated, his indictment was not appropriately presented to a grand jury, that each element of the crime was not proven beyond a reasonable doubt, erroneous sentence, and IAC based on failure to request a jury charge for a lesser included offense. Id. at docs. 1; 24. The petitioner's petition was denied on the merits. Young, 2008 WL 4319985 (D.S.C. Sept. 16, 2008). The petitioner appealed, and the Fourth Circuit dismissed the appeal. Young v. Burtt, 326 Fed.Appx. 205 (4th Cir. 2009). He filed a petition for a writ of certiorari with the United States Supreme Court that was denied on December 7, 2009. Young v. Bodison, 558 U.S. 1080 (2009).
The petitioner then filed a second action in this court seeking habeas relief for his armed robbery conviction. See Young v. James, C/A No. 6:22-cv-00428-CMC (D.S.C.).
In the petition, the petitioner asserted due process violations because the state did not prove all of the elements of armed robbery, an improper indictment, and actual innocence. Id. at doc. 1. On March 16, 2022, the undersigned issued a report and recommendation in that action recommending that the petition be dismissed as successive. Id. at doc. 10. The report and recommendation remains pending at this time.
Petitioner's Present Action
The petitioner then filed the instant action, seeking for the third time in this court, habeas relief for his armed robbery conviction (doc. 1). As ground one for relief the petitioner asserts that he was denied his right to a fair and impartial trial as well as that his Sixth and Fourteenth Amendment rights were violated (id. at 5-6). Ground two for relief is that the petitioner's Eighth and Fourteenth Amendment rights have been violated because he has not been allowed on parole (id. at 7-8). The petitioner asserts that he has a pending appeal to the South Carolina Supreme Court seeking an extraordinary writ for lack of subject matter jurisdiction (id. at 12). With respect to timeliness, the petitioner contends that the South Carolina Supreme Court issued a ruling in September of 2021 (id. at 13-14). For relief, the petitioner seeks to have his conviction overturned and to be placed on parole (id. at 15).
STANDARD OF REVIEW
The undersigned has reviewed the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's 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 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, 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, 391 (4th Cir. 1990).
DISCUSSION
On April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 (the “AEDPA”) amended 28 U.S.C. § 2254 and other habeas statutes:
The AEDPA effected a number of substantial changes regarding the availability of federal postconviction relief to individuals convicted of crimes in federal and state courts. Of particular importance here are the provisions of the AEDPA codifying and extending judicially constructed limits on the consideration of second and successive applications for collateral relief. Under the AEDPA, an individual may not file a second or successive § 2254 petition for a writ of habeas corpus or § 2255 motion to vacate sentence without first receiving permission to do so from the appropriate circuit court of appeals.In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (footnote and internal citation omitted). The “gatekeeping” mechanism created by the AEDPA amended § 2244(b) to provide:
The prospective applicant must file in the court of appeals a motion for leave to file a second or successive habeas application in the district court. A three-judge panel has 30 days to determine whether “the application makes a prima facie showing that the application satisfies the requirements of” § 2244(b).Felker v. Turpin, 518 U.S. 651, 657 (1996) (internal citations omitted).
The instant action qualifies as a second or successive § 2254 action because the petitioner has previously filed a § 2254 petition that was denied on the merits. Young, 2008 WL 4319985. Even liberally construing the petitioner's petition as asserting that his parole eligibility claims are not successive, the petitioner's argument fails. On October 2, 2020, in an unpublished, non-binding, per curiam opinion, the Fourth Circuit held that the petitioner in that case did not require permission to file a second § 2254 petition since his parole eligibility had been changed and he had not been able to challenge his parole eligibility in his first § 2254. In re Torrence, 828 Fed.Appx. 877, 878 (4th Cir. 2020) (unpublished per curiam opinion). Here, however, the petitioner has been ineligible for parole since he was first convicted and sentenced; thus, any claim regarding his parole status is successive as it could have been raised in his first § 2254 petition. See In re Torrence, 828 Fed.Appx. at 881-82 (noting that parole eligibility claim by petitioner could not be pursued in first § 2254 petition because the claim ripened when his parole eligibility was changed and it was unexhausted - so he could bring a second § 2254 petition regarding parole eligibility without authorization). Additionally, because the petitioner has a pending appeal in the South Carolina Court of Appeals that addresses the calculation of his sentence and his entitlement to parole, judicial efficiency supports dismissal of the instant action as the South Carolina Court of Appeals may still grant petitioner the relief sought in the instant action.
Despite the foregoing, 28 U.S.C. § 2244(b)(2) provides that in some circumstances a petitioner may bring a second or successive § 2254 action. That statute permits a court of appeals to determine whether to authorize a successive petition. As such, even presuming the petitioner asserts a newly discovered evidence claim in the instant petition, the United States Court of Appeals for the Fourth Circuit-not this District Court-is the proper tribunal to decide whether to authorize a successive § 2254 petition. See United States v. Winestock, 340 F.3d 200, 205-06 (4th Cir. 2003), abrogated in part on other grounds by United States v. McRae, 793 F.3d 392 (4th Cir. 2015). Because it appears that the petitioner did not obtain authorization from the Fourth Circuit Court of Appeals to file this petition, this Court does not have jurisdiction to consider it. Id.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2254 petition be dismissed without requiring the respondent to file an answer or return. The attention of the parties is directed to the important notice on the next page.
The petitioner cannot cure the deficiencies noted herein; however, dismissal without prejudice is recommended because the Court of Appeals has held that dismissals for lack of subject-matter jurisdiction must be without prejudice. S. Walk at Broadlands Homeowner's Assn v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
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, Room 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).