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Carter v. Cohen

United States District Court, D. South Carolina, Charleston Division

July 13, 2015

Charles Ray Carter, #246054, Petitioner,
Lavern Cohen, Warden, Ridgeland CI, Respondent.


MICHELLE CHILDS, District Judge.

Charles Ray Carter ("Petitioner"), a self-represented state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on July 29, 2013. (ECF No. 1.) Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2) D.S.C., Magistrate Judge Bruce Howe Hendricks reviewed the petition and submitted findings and recommendations to the court. (ECF No. 13.) The Magistrate Judge recommends that the court dismiss the Petition in this case without prejudice and without issuance and service of process. This matter is before the court on the Report and Recommendation (ECF No. 13) that was filed on September 30, 2013, and Petitioner's Objection to Report and Recommendation (ECF No. 19), which was filed on November 18, 2013.

For the reasons set forth below, the court DISMISSES Petitioner's writ of habeas corpus (ECF No. 1) without prejudice and without requiring Respondent to file an answer or return.


The facts as viewed in the light most favorable to Petitioner are discussed in the Report and Recommendation ("Report"). ( See ECF No. 13.) The court concludes, upon its own careful review of the record, that the Magistrate Judge's factual summation is accurate and incorporates it by reference. The court references below excerpts from the Report that are pertinent to the analysis of Petitioner's claims:

Petitioner is an inmate at the Ridgeland Correctional Institution of the South Carolina Department of Corrections ("SCDC"). On December 10, 1997, in the Court of General Sessions for York County, Petitioner was sentenced to a thirty-year (30) sentence for possession of crack cocaine with intent to distribute. (ECF No. 13 at 1.) Petitioner filed a direct appeal of his conviction, which was dismissed as untimely. ( Id. at 2.) A motion to reinstate the appeal was denied, as was a petition for a writ of certiorari to the South Carolina Supreme Court. ( Id. ) Petitioner then applied for postconviction relief ("PCR"), which was denied on November 12, 1999. ( Id. ) Petitioner appealed the denial of his PCR action to the South Carolina Supreme Court, which denied certiorari on July 20, 2001. ( Id. ) Since that time, Petitioner has filed three more PCR applications, which were also denied. ( Id. ) As a result of Petitioner's repetitive and frivolous findings, the Chief Administrative Judge of the Sixteenth Judicial Circuit issued an order restricting future filings by Petitioner on November 15, 2010. ( Id., citing Carter v. Reynolds, C/A No. 2:11-2899-JMC-BHH (D.S.C.)).
In addition, Petitioner has filed four previous actions pursuant to 28 U.S.C. § 2254. Petitioner's first habeas petition, Civil Action Number 6:00-02179-HMH (D.S.C.), was dismissed for failure to exhaust state court remedies on April 30, 2001.[1] (ECF No. 13 at 2.) Petitioner filed a second writ of habeas corpus, Civil Action Number 8:01-04084-HMH (D.S.C.), which resulted in summary judgment being granted for Respondent on September 27, 2002. ( Id. ) Petitioner appealed the dismissal of his second habeas petition to the Fourth Circuit Court of Appeals, which dismissed the appeal on December 9, 2002. ( Id. ) Petitioner's third habeas petition challenging his 1997 conviction, Civil Action Number 8:04-01887-HMH (D.S.C.), was dismissed as successive on August 3, 2004. ( Carter, C/A No. 2:11-2899-JMC-BHH, ECF No. 8 at 3 (footnote added)). Petitioner has since filed two more § 2254 habeas petitions: Civil Action Numbers 8:10-525-HMH (D.S.C.), and 2:11-02899-JMC (D.S.C.); both were summarily dismissed.[2]
In the instant case, Petitioner alleges that his sentence has been improperly calculated. Petitioner asserts that, on his December 10, 1997 indictment for possession with intent to distribute ("PWID") crack, his "CDR"[3] Code was designated "112." ( See ECF No. 1-2 at 1.) His sentencing sheet for PWID crack, of the same date, listed his CDR Code as 102, [4] as did the docket report. ( Id. at 3, 13.) Further, Petitioner contends that, in 1998, he was informed that his "maxout date" was October 7, 2013, and his initial parole date would be January 5, 2004. ( See id. at 4.) In 1999, however, Petitioner requested a copy of his sentencing sheet and noticed that CDR Code "102" had been crossed out and replaced with CDR Code 114, [5] and "3RD off[ense]" added. ( See id. at 5.) This change altered Petitioner's sentence such that his maxout date became June 3, 2023, and he is no longer eligible for parole. ( See id. at 6.) Petitioner has filed step one and step two grievances with SCDC, and apparently filed an application for post-conviction relief in the York County Court of Common Pleas as well as a petition for writ of certiorari in the South Carolina Supreme Court. ( See id. at 19.) These petitions were denied.[6] ( Id. )
Petitioner argues that the change in his CDR Code from 102 to 114 is an "unlawful modification of his sentence" that "stripped him of his parole eligibility and increased the amount of time that he must serve... without affording him due process of law." (ECF No. 1 at 1.) Petitioner believes that he has been sentenced under "a new drug statu[t]e not even created until June 1998, " and that SCDC Clerk Michael Stobbe "[took] it upon his own to modify Petitioner's sentence." ( Id. at 3.) Petitioner adds that he has been denied good time and work credits that he has earned before his sentence was "unlawfully modified" and, with these credits and his original maxout dates, he would already have been released. ( Id. at 8.) Accordingly, Petitioner requests immediate release from custody.

(ECF No. 13 at 1-4.)


Section 2241 provides, in pertinent part, that "[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district court and any circuit judge within their respective jurisdictions" to prisoners "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(a), (c)(3). "Unlike petitions brought under § 2254, which challenge the validity of a state court conviction and sentence, petitions brought under § 2241 generally challenge the execution or implementation of a sentence, such as parole matters, sentence computation, calculation of good time credits, prison disciplinary actions, and transfers." Clemmons v. South Carolina, C.A. No. 0:08-cv-607-RBH, 2008 WL 2845636, at *1 (D.S.C. July 18, 2008). Before a state prisoner can seek federal habeas relief under § 2241, he must first exhaust any state court remedies that may be available. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).


According to the Magistrate Judge, "a state prisoner's sentence calculation claim will fall within the category of administrative issues that the South Carolina Supreme Court has identified as properly being raised through the prison grievance process with appeal to the South Carolina Administrative Law Court ("ALC"), rather than through a post-conviction relief ("PCR") application in circuit court." (ECF No. 13 at 7 (citing Al-Shabazz, 527 S.E.2d at 742).) "Pursuant to the South Carolina Administrative Procedures Act and the South Carolina Appellate Court Rules, an inmate who is dissatisfied with the decision of the ALC may seek judicial ...

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