Opinion
C. A. 8:21-cv-01037-JD-JDA
06-02-2021
Robert Austin Morton, Petitioner, v. State of South Carolina, Respondent.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE.
Robert Austin Morton (“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.
The undersigned notes that Petitioner has not alleged that he is presently incarcerated. [See Doc. 1 at 1 (listing a residential address as his place of confinement).] Further, the undersigned was unable to locate Petitioner in a search of the South Carolina Department of Corrections' Incarcerated Inmate Search, available at https://public.doc.state.sc. us/scdc-public/ (search by Petitioner's name) (last visited June 2, 2021).
BACKGROUND
Petitioner makes the following allegations in his Petition. [Doc. 1.] Petitioner was convicted after pleading guilty to the charge of third degree criminal sexual conduct with a minor in the Spartanburg County Court of General Sessions at case No. 2015A4210102133 and was sentenced on April 20, 2016, to a term of imprisonment of 12 years. [Id. at 1-2.] Petitioner contends he filed an appeal, which was denied. [Id. at 2-3.] Petitioner asserts the following grounds in his Petition. First, Petitioner contends the victim stated that Petitioner “never touched her on her behind or her vagina” during an interview with the child advocacy center. [Id. at 5.] Second, Petitioner contends that the victim's mother stated that she did not believe that Petitioner touched her daughter in a sexual manner and admitted that her daughter made other false accusations of sexual assault. [Id. at 7.] Third, Petitioner contends he wanted to go to trial, but his public defender coerced him to take a plea deal even though he did not commit the crime. [Id. at 8.] Petitioner asserts he did not have the opportunity to confront his accusers in court. [Id.] Fourth, Petitioner contends there is “no evidence whatsoever” that he committed a crimeand the State did not provide any witness to support its claim. [Id. at 10.] Petitioner contends he did not raise these issues in his appeal because he did not receiv e proof of his innocence until after he was sentenced. [Id. At 6-11.]
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.'”).
For his relief, Petitioner asks that the Court vacate his conviction and remove his name from the sex offender registry or grant him a new trial. [Id. At 15.]
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in the above-captioned case. The review was conducted pursuant to the procedural provisions of 28 U.S.C. § 1915, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. 104-132, 110 Stat. 1214, and 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, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
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).
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 and sentence for criminal sexual conduct with a minor. 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). Under § 2254, a federal court may issue a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). However, exhaustion of state court remedies is required by 28 U.S.C. § 2254(b)(1)(A), which provides that “[a]n 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 . . . .” 28 U.S.C. § 2254(b)(1); Straws v. Padula, No. 4:09-cv-009-HFF-TER, 2009 WL 691190, at *2 (D.S.C. Mar. 16, 2009). “The exhaustion requirement is ‘grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.'” Washington v. Cartledge, No. 4:08-cv-4052-PMD, 2010 WL 1257356, at *1 (D.S.C. Mar. 29, 2010) (quoting Coleman v. Thompson, 501 U.S. 722, 731 (1991)). As the Fourth Circuit Court of Appeals has explained, “a federal habeas court may consider only those issues which have been ‘fairly presented' to the state courts.” Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir. 1997) (instructing that, “to satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court. The burden of proving that a claim has been exhausted lies with the petitioner.”) (citations omitted).
A state prisoner seeking habeas relief ordinarily “must exhaust his remedies in state court” and must “give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts.” O'Sullivan v. Boerckel, 526 U.S. 838, 842, 845 (1999); see 28 U.S.C. § 2254(b) (explaining the exhaustion requirement). To exhaust state court remedies in South Carolina from a criminal conviction or sentence, a defendant may file a direct appeal. See State v. Northcutt, 641 S.E.2d 873 (S.C. 2007). If a direct appeal was filed and is ultimately unsuccessful (or if no direct appeal was filed), a petitioner may file an application for post-conviction relief (“PCR”) in a court of common pleas. See S.C. Code § 17-27-10, et seq. (1976); see also Miller v. Harvey, 566 F.2d 879, 880-81 (4th Cir. 1977) (noting that South Carolina's Uniform Post-Conviction Procedure Act is a viable state court remedy). If a South Carolina prisoner's PCR application is denied or dismissed by a court of common pleas, a petitioner can file a request for writ of certiorari with a South Carolina appellate court. See S.C. Code § 17-27-100; Knight v. State, 325 S.E.2d 535 (S.C. 1985). In fact, if a petitioner's PCR application is denied by a court of common pleas, the petitioner must seek appellate review in the state courts or federal collateral review of the grounds raised in his PCR application may be barred by a procedural default. See Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (finding that exhaustion requires state prisoners to complete at least one complete round of the state's established appellate review process by presenting the ground for relief in a face-up and square fashion).
Here, the Petition is subject to summary dismissal because Petitioner has failed to exhaust his state court remedies. As noted, Petitioner was sentenced on April 20, 2016, in the Spartanburg County Court of General Sessions at case No. 2015A4210102133. Petitioner filed a PCR action in the Spartanburg County Court of Common Pleas on August 22, 2016, at case No. 2016CP4203109, and a second PCR action on July 31, 2020, at case No. 2020CP4202604, both regarding the conviction and sentence he seeks to challenge in the present action. See Morton v. State, Nos. 2020CP4202604 and 2016CP4203109, available at the Spartanburg County Seventh Judicial Circuit Public Index, https://publicindex.sccourts.org/ Spartanburg/PublicIndex/PISearch.aspx (search by case No. “2020CP4202604” and “2016CP4203109”) (last visited June 2, 2021). Petitioner's first PCR action at case No. 2016CP4203109 was dismissed on September 18, 2017, after Petitioner withdrew his application. Petitioner's second PCR action at case No. 2020CP4202604 remains pending in the state court. Id.
Therefore, because Petitioner's PCR action remains pending in the state court, he cannot demonstrate exhaustion of state remedies under the habeas statute. See Williams v. Dunlap, No. 8:11-cv-00645-JMC-JDA, 2011 WL 13177179, at *2 (D.S.C. Apr. 21, 2011), Report and Recommendation adopted by 2011 WL 13177174 (D.S.C. July 1, 2011). As such, this Court should not keep this case on its docket while Petitioner finishes exhausting his state remedies. Washington, 2010 WL 1257356, at *2 (explaining that dismissal is proper because “Petitioner simply cannot proceed with the instant petition until his application for post-conviction relief is ruled upon and a petition for a writ of certiorari is considered by the South Carolina Supreme Court”) (citing 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270 (1971); Galloway v. Stephenson, 510 F.Supp. 840, 846 (M.D. N.C. 1981)). For these reasons, the instant Petition is premature and is subject to summary dismissal without prejudice.
The present habeas action also appears to be subject to dismissal as time-barred by the applicable statute of limitations. Under the AEDPA, a petitioner has one year to file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1) (“A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.”). 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). While the limitations period is tolled during the pendency of a properly filed collateral attack on the subject conviction, the one-year statute of limitations begins to run on the date a petitioner's conviction becomes final, not at the end of collateral review. Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000); see also Crawley v. Catoe, 257 F.3d 395, 398 (4th Cir. 2001) (evaluating when a conviction becomes final under South Carolina law); Myers v. Warden of McCormick Corr. Inst., No. 1:11-cv-450-TLW-SVH, 2011 WL 7143471, at *8 (D.S.C. Nov. 28, 2011) (same), Report and Recommendation adopted by 2012 WL 359733 (D.S.C. Feb. 2, 2012). Here, this action appears to be time-barred. Accordingly, even if this action was not subject to dismissal on the basis that Petitioner has not exhausted his administrative remedies, the undersigned would recommend dismissal on the ground that it is time-barred. See Day v. McDonough, 547 U.S. 198, 208 (2006) (district courts may sua sponte consider the timeliness of state prisoner's habeas petition); Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002) (holding that habeas court had discretion to sua sponte dismiss habeas petition for untimeliness).
RECOMMENDATION
Accordingly, it is recommended that this action be dismissed without prejudice and without requiring the Respondent to file an answer or return.
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
300 East Washington Street, Room 239
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).