United States District Court, D. South Carolina
Dominic Hicks, Petitioner, Pro Se.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, Magistrate Judge.
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Â§
2254 was submitted to the court by a state prison inmate
appearing pro se. Pursuant to 28 U.S.C. Â§ 636(b)(1)(B), and
Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate
judge is authorized to review all pretrial matters in such
pro se cases and to submit findings and recommendations to
the district court. See 28 U.S.C. Â§Â§ 1915(e), 1915A
(as soon as possible after docketing, district courts should
review prisoner cases to determine whether they are subject
to summary dismissal).
Hicks ("Petitioner") is a North Carolina state
prison inmate seeking to challenge a simple assault
conviction and sentence entered against him in
abstentia on July 30, 2015 by the Municipal Court of
Lyman, South Carolina, which is a city in Spartanburg County.
Pet. 1, ECF No. 1. Petitioner has submitted a Petition
pursuant to 28 U.S.C. Â§ 2254 asking this court to vacate his
conviction and sentence based on allegations that his federal
constitutional rights were violated by the trial held in his
absence. ECF No. 1-1 at 1-2. Petitioner acknowledges that he
has not presented his current claim to any state court before
submitting the Â§ 2254 Petition now under review. ECF No. 1 at
2-4. Petitioner indicates he did not first present his claim
to a state court because he attempted to appeal the
conviction and sentence to the Spartanburg County Court of
General Sessions but was told that the court did not have
jurisdiction. Id. at 2. There is no indication that
Petitioner made any further attempts to appeal to a different
court or that he filed a state post-conviction relief
("PCR") application in any state court before
filing the Petition now under review.
Standard of Review
established local procedure in this judicial district, a
careful review was made of the pro se Petition filed in this
case. The review was conducted pursuant to the procedural
provisions of 28 U.S.C. Â§Â§ 1915, 1915A, and the
Anti-Terrorism and Effective Death Penalty Act of 1996, 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); Boyce v.
Alizaduh, 595 F.2d 948 (4th Cir. 1979).
court is required to construe pro se petitions liberally.
Such pro se petitions are held to a less stringent standard
than those drafted by attorneys, Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district
court is charged with liberally construing a petition filed
by a pro se litigant to allow the development of a
potentially meritorious case. Erickson v. Pardus,
551 U.S. 89, 94 (2007). When a federal court is evaluating a
pro se petition the petitioner's allegations are assumed
to be true. De'Lonta v. Angelone, 330 F.3d 630,
630 n.1 (4th Cir. 2003). 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. Dep't of Soc. Servs., 901 F.2d 387,
391 (4th Cir. 1990).
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 Rules
Governing Section 2254 Cases in the United States District
Courts; see Rule 1(b) of Rules Governing Section
2254 Cases in the United States District Courts (a district
court may apply these rules to a habeas corpus petition not
filed pursuant to Â§ 2254). Following the required initial
review, it is recommended that the Petition submitted in this
case be summarily dismissed.
Petition for a Writ of Habeas Corpus filed in this case
should be dismissed because Petitioner has not exhausted his
state remedies. With respect to his Lyman Municipal Court
conviction and sentence, Petitioner's sole federal
remedies are a writ of habeas corpus under 28 U.S.C. Â§ 2254
and possibly, but less commonly, a writ habeas corpus under
28 U.S.C. Â§ 2241, either of which can be sought only after
Petitioner has exhausted his state court remedies.
See 28 U.S.C. Â§ 2254(b); Braden v. 30th Judicial
Circuit Court, 410 U.S. 484, 490-91 (1973) (exhaustion
also required under 28 U.S.C. Â§ 2241); Picard v.
Connor, 404 U.S. 270, 275-76 (1971); Moore v. De
Young, 515 F.2d 437, 442-43 (3d Cir. 1975) (exhaustion
required under 28 U.S.C. Â§ 2241). Exhaustion "preserves
the respective roles of state and federal governments and
avoids unnecessary collisions between sovereign powers.
States are allowed to vindicate their interest in prompt and
orderly administration of justice, while the federal
judiciary upholds its responsibility to prevent the exercise
of illegitimate authority." Fain v. Duff, 488
F.2d 218, 224 (5th Cir. 1973) (citing Braden ). Such
considerations should not be dispensed with lightly. 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