Opinion
C. A. 4:23-6955-MGL-TER
02-12-2024
Darrell Green, #249354, Petitioner, v. Warden Manning Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
Petitioner, a state prisoner, proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B) (2)(c) DSC. Having reviewed the petition in accordance with applicable law, the court concludes that it should be summarily dismissed.
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings and motion to proceed in forma pauperis pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted 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, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). 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 currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).
DISCUSSION
Petitioner contests two state court convictions, one out of Horry County, trafficking in meth No. 15-GS-2603541 and one out of Florence County, trafficking in cocaine, No. 14-GS-2101453. (ECF No. 1). The procedural history of each is set out separately below; both appear to be unexhausted according to the records of the lower court and the South Carolina Supreme Court.
See generally, https://publicindex.sccourts.org/florence/publicindex/(with search parameters limited by Petitioner's name). The court may take judicial notice of factual information located in postings on government websites. See In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records); Williams v. Long, No. 07-3459-PWG, 2008 WL 4848362 at *7 (D. Md. Nov. 7, 2008) (noting that some courts have found postings on government websites as inherently authentic or self-authenticating).
Petitioner pleaded guilty on October 19, 2015 to trafficking in cocaine. No direct appeal was filed. Petitioner filed a PCR on March 30, 2016. Petitioner's sentence was reduced on December 7, 2016. There has been no disposition in the lower state court much less an available appeal of any lower court decision. The last order filed in October 2022 was an order of continuance. The last filing overall was an Amended PCR application filed November 30, 2022. There have been no filings in the case since then, over a year ago. Petitioner's new counsel appeared in 2020, Joshua A. Bailey of Florence. In 2018, Petitioner attempted to file a second PCR and in forma pauperis was denied and the action closed. Petitioner has not exhausted as to this conviction with the state court as further explained below.
See generally, https://publicindex.sccourts.org/horry/publicindex/ (with search parameters limited by Petitioner's name).
On October 27, 2015, Petitioner pleaded guilty to trafficking in meth. Petitioner did not file a direct appeal. On March 30, 2016, Petitioner filed a PCR. On May 15, 2020, Petitioner's counsel James Falk filed a Notice of Appeal and attached an eleven page order of dismissal signed by a state court judge on April 23, 2020. On May 20, 2020, the Clerk for the Supreme Court of South Carolina dismissed the appeal stating: “Because it appears no final order has been filed in this case, the matter is dismissed without prejudice to petitioner's right to appeal once a final order is entered by the lower court.” This order was sent to Petitioner's attorney Falk. The lower court's records show that an order of dismissal was filed May 27, 2020; however, that document is the same order signed April 23, 2020. The lower court records also show that the remittitur from the South Carolina Supreme Court was received July 8, 2020. There was a filing in May 2021, but there have been no other filings from either the court or the parties since then. The overall docket has “status” as “dismissed” and an entry for disposition date which is listed as May 28, 2020. As of 2024, the only attorney listed active on the Horry County docket is James Falk. However, in 2023, attorney Falk was suspended from the practice of law and a Mr. Lumpkin was appointed to assume responsibility for his files but Lumpkin was not permitted to practice law except as authorized by specific rules. Appellate Case Nos. 2023-000662, 2023-0000663. Public information shows attorney Falk died shortly thereafter. It appears Petitioner has not been contacted by Mr. Lumpkin. Due to the South Carolina Supreme Court's order, it appears there has been no final disposition to exhaust this conviction. Even if it could remotely be considered exhausted, 2020 is over three years past and Petitioner would be barred by the statute of limitations.
Petitioner's two PCRs remain pending. Petitioner acknowledges this in the Petition: “[PCR] has been filed since 2016 and I have less than two years to max out and no court has rendered an order or judgment.” (ECF No. 1 at 7). Throughout the Petition, numerous answers are “no judgment rendered.” (ECF No. 1). Petitioner alleges all cases remain open for years, “it's like they forgot about me, and he “can't get a response from [any] lawyer or court or clerk.” (ECF No. 1 at 13).
With respect to his convictions and sentences, Petitioner's sole federal remedies are a writ of habeas corpus under either 28 U.S.C. § 2254 or 28 U.S.C. § 2241, which remedies can be sought only after the petitioner has exhausted his state court remedies. “It is the rule in this country that assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Claims not so raised are considered defaulted.” Beard v. Green, 523 U.S. 371, 375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)); see also 28 U.S.C. § 2254(b); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973); Picard v. Connor, 404 U.S. 270 (1971). It is well-settled that state prisoners must exhaust all available state-court avenues for challenging their convictions before they seek habeas relief in federal court. See 28 U.S.C. § 2254(b)(1). Section 2254 generally forbids federal courts from granting collateral relief until prisoners have “fairly presented” their claims in each appropriate state court. Baldwin v. Reese, 541 U.S. 27, 27 (2004); see also Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (“The exhaustion requirement ... serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights.”); Stewart v. Warden of Lieber Corr. Inst., 701 F.Supp.2d 785, 790 (D.S.C. 2010) (noting that “a federal habeas court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them”). To satisfy his burden, Petitioner must show that both the operative facts and the controlling legal principles were presented to the highest state court. Gordon v. Braxton, 780 F.3d 196, 201 (4th Cir. 2015).
Here, Petitioner's PCRs appear to be ongoing, as the matters appear to be still pending. Because appellate review of the PCR court's decision is necessary to show exhaustion in South Carolina, Petitioner's federal habeas claims are unexhausted and premature at this stage. See Braveboy v. James, No. 8:20-cv-03486-TMC-JDA, 2020 WL 8713682, at *3 (D.S.C. Nov. 10, 2020), adopted, 2021 WL 423410 (D.S.C. Feb. 8, 2021); Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (noting that state prisoners must invoke “one complete round of the State's established appellate review process”). Thus, it is recommended that Petitioner's habeas Petition be dismissed so that he may exhaust his state-court remedies as required under 28 U.S.C. § 2254(b)(1). See, e.g., Goss v. Williams, No. 2:18-cv-2938-BHH, 2020 WL 502635, at *2 (D.S.C. Jan. 31, 2020), appeal dismissed, 814 Fed.Appx. 776 (4th Cir. 2020)(dismissing pro se § 2254 petition for failure to exhaust state remedies where PCR application was still pending before state court); Braveboy, 2020 WL 8713682, at *3; Washington v. Cartledge, No. 4:08-cv-04052-PMD, 2010 WL 1257356, at *2 (D.S.C. Mar. 29, 2010); Young v. Warden of Perry Corr. Inst., No. 2:20-CV-03974-RMG-MGB, 2021 WL 2210800, at *3 (D.S.C. May 13, 2021), report and recommendation adopted, 2021 WL 2210712 (D.S.C. June 1, 2021).
RECOMMENDATION
Accordingly, it is recommended that the § 2254 petition be summarily dismissed without prejudice and without requiring the respondent to file a return. Petitioner can refile his § 2254 petition with the Court after he has exhausted his state court remedies. The undersigned reminds Petitioner to be mindful of the statute of limitations applicable to this action. See 28 U.S.C. § 2244(d).
Notice of Right to File Objections to Report and Recommendation
The petitioner is advised that he may file specific written objections to this Report and Recommendation with the District Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In the absence of a timely filed objection, a district court judge 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 & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005).
Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed.R.Civ.P. 6(a) & (e). Filing by mail pursuant to Fed.R.Civ.P. 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 the waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); and Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).