Opinion
C. A. 9:20-945-SAL-BM
06-03-2021
Robert M. Fulmer, Petitioner, v. Warden Brian Kendell, Respondent.
REPORT AND RECOMMENDATION
BRISTO W MARCHANT UNITED STATES MAGISTRATE JUDGE
The Petitioner, Robert M. Fulmer, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2254 for habeas relief. He is an inmate at the Lieber Correctional Institution, part of the South Carolina Department of Corrections.
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 pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (AEDPA), 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); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se petitions are also held to a less stringent standard than those drafted by attorneys, and a federal district court is charged with liberally construing a petition filed by a pro se litigant to allow for the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978) (citing Rice v. Olson, 324 U.S. 786, 791-92 (1945); Holiday v. Johnston, 313 U.S. 342, 350 (1941)).
Nonetheless, 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 of the Rules Governing Section 2254 Cases in the United States District Courts. 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. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Such is the case here.
Discussion
Petitioner requests that this Court vacate his convictions and sentences, dismiss all charges, bar the State from reprosecuting him, and convert this Petition into a § 1983 damages action. Petition, ECF No. 1 at 14. His asserted grounds for relief include three grounds of ineffective assistance of counsel and due process/equal protection violations. Id at 5-10.
A petitioner generally cannot seek damages in a habeas action such that Petitioner would need to file a separate action for damages pursuant to 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 494 (1973) [“In the case of a damages claim, habeas corpus is not an appropriate or available federal remedy.”]. However, any such claims brought under § 1983 are subject to summary dismissal based on the United States Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994), which held that a state prisoner's claim for damages is not cognizable under § 1983 where success of the action would implicitly question the validity of the conviction or duration of the sentence, unless the prisoner can demonstrate that the conviction or sentence has been previously invalidated. Heck, 512 U.S. at 486-487.
Petitioner states that he is challenging his August 26, 2014 convictions for attempted murder, first degree burglary, possession of a weapon during the commission of a violent crime, and petit larceny, for which he was sentenced to a total of thirty years imprisonment. Petition, ECF No. 1 at 1. A direct appeal was never perfected. Id. at 2. Petitioner filed an application for post-conviction relief (PCR) in the Pickens County Court of Common Pleas (case number 2014-CP-39-1550) on December 29, 2014, which was denied in an order dated May 19, 2017. Id. at 3.On July 3, 2017, Petitioner filed an appeal of the denial of his PCR as to Grounds One to Three of his Petition, but admits that the appeal is still pending. Id. at 6, 8, 9. Records from Pickens County also indicate that Petitioner's appeal is still pending. See Pickens County Thirteenth Judicial Circuit Public Index, https://publicindex.sccourts.org/Pickens/PublicIndex/CaseDetails.aspx?County=39 &CourtAgency=39002&Casenum=2014CP3901550&CaseType=V&HKey=1199910971695110 774122981117678748243568610110980115118867711853437697668310669861058710712210 7838889.
The Court may take judicial notice of factual information located in postings on government web sites. See Tisdale v. South Carolina Highway Patrol, C. A. No. 0:09-1009-HFF-PJG, 2009 WL 1491409, *1 n. 1 (D.S.C. May 27, 2009), aff'd 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009); In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D.La. September 8, 2008)[noting that courts may take judicial notice of governmental websites including other courts' records]; Williams v. Long, 585 F.Supp.2d 679, 687-88 (D.Md. 2008) [noting that some courts have found postings on government web sites as inherently authentic or self-authenticating].
This § 2254 Petition should be dismissed because it is clear from the face of the Petition that Petitioner has not yet fully exhausted his state court remedies. With respect to Petitioner's convictions and sentences, his sole federal remedies are a writ of habeas corpus under either 28 U.S.C. § 2254 and possibly, but much less commonly, a writ of habeas corpus under 28 U.S.C. § 2241, which remedies can be sought only after the petitioner has exhausted his state court remedies. See 28 U.S.C. § 2254(b). 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.” Coleman v. Thompson, 501 U.S. 722, 731 (1991); Lawson v. Dixon, 3 F.3d 743, 749-50 n. 4 (4th Cir. 1993). In Matthews v. Evatt, 105 F.3d 907 (4th Cir.1997), the Fourth Circuit found that “a federal habeas court may consider only those issues which have been ‘fairly presented' to the state courts.... 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.” Id. at 911 (citations omitted), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011)).
Section 2254's exhaustion requirement provides:
(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(b), (c).
To exhaust state court remedies in South Carolina, a direct appeal may be pursued. See State v. Northcutt, 641 S.E.2d 873 (S.C. 2007). If a direct appeal is filed and is ultimately unsuccessful (or if no direct appeal is filed), a petitioner may file an application for PCR in a court of common pleas. See S.C. Code Ann § 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, the petitioner can then file a request for writ of certiorari with a South Carolina appellate court. See S.C. Code Ann § 17-27-100 (1976); Knight v. State, 325 S.E.2d 535 (S.C. 1985). 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 it is clear that Petitioner has a viable state court remedy (his appeal of his PCR which is still pending). Thus, this Court should not keep this case on its docket while Petitioner is exhausting his state remedies. See Galloway v. Stephenson, 510 F.Supp. 840, 846 (M.D. N.C. 1981)[“When state court remedies have not been exhausted, absent special circumstances, a federal habeas court may not retain the case on its docket, pending exhaustion, but should dismiss the petition.”].
In Ground Four of his Petition, Petitioner asserts that he was denied due process and equal protection of law because the state court has allegedly unreasonably delayed his postconviction proceeding for five years. He asserts that this is a “free standing” claim that does not have to be exhausted in state court. ECF No. 1 at 9-10. However, this action should be dismissed as Petitioner acknowledges he has not yet exhausted all his state remedies as discussed above. See 28 U.S.C. § 2254(b)(1)[defining exhaustion prerequisites to filing a § 2254 petition]; Rose v. Lundy, 455 U.S. 509, 522 (2005)[requiring district courts dismiss mixed habeas petitions without prejudice to allow the petitioner to exhaust state remedies]; Prather v. Cartledge, No. 1:11-3176-RMC, 2012 WL 930956, at *1 (D.S.C. Mar. 19, 2012)[summarily dismissing § 2254 habeas petition without prejudice because the petitioner acknowledged that he had a pending state proceeding for postconviction relief]. Also, there is no indication that dismissal would impair Petitioner's ability to obtain § 2254 relief at a later date, as it does not appear that he has used all of the days in his one-year statute of limitations, and the statute of limitations is tolled while his current PCR action is pending. See Rhines v. Weber, 544 U.S. 269, 273-79 (2005)[providing district courts should stay mixed § 2254 petitions in certain circumstances to protect the petitioner from running afoul of the statute of limitations].
To the extent that Petitioner is arguing futility or unreasonable delay in regard to his state PCR action, the court notes that “state remedies may be rendered ineffective by inordinate delay or inaction in state proceedings.” Ward v. Freeman, 46 F.3d 1129, 1995 WL 48002 (4th Cir. 1995) (unpublished). Here, Petitioner has not asserted any allegations indicating inordinate delay or inaction. Simply because it may take the state court time to render a decision does not render it ineffective or futile. Generally, a more lengthy delay than that of which Petitioner complains is required. See, e.g., Ward, 1995 WL 48002, at *1 [holding that fifteen-year delay rendered petitioner's state remedies ineffective and negated exhaustion requirement]; Lee v. Stickman, 357 F.3d 338 (3d Cir. 2004) [eight-year delay of PCR action]; Mathis v. Hood, 851 F.2d 612 (2d Cir.1988) [six-year delay in direct appeal].
Recommendation
Based on the foregoing, it is recommended that the instant Petition for a Writ of Habeas Corpus be summarily dismissed without prejudice and without requiring Respondent to file a return.
Petitioner's attention is directed to the important notice on the next page.
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 Post Office Box 835 Charleston, South Carolina 29402
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).