United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Bernard McFadden (“Petitioner”) filed this
pro se Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2241 (“Petition”) challenging
his conviction in a disciplinary proceeding at the state
correctional institution where he is incarcerated. (ECF No.
1; ECF No. 1-4.) This matter is before the court on
Respondent David Dunlap's (“Respondent”)
Motion to Dismiss (ECF No. 8).
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02,
the matter was referred to United States Magistrate Judge
Mary Gordon Baker for pre-trial handling. On July 6, 2016,
the Magistrate Judge issued a Report and Recommendation,
recommending that the court grant Respondent's Motion to
Dismiss. (ECF No. 14.) This review considers Petitioner's
Objections to Magistrate's Report and Recommendation
(“Objections”), filed July 18, 2016. (ECF No.
16.) For the reasons set forth herein, the court ACCEPTS the
Magistrate Judge's Report and Recommendation (ECF No.
14), GRANTS Respondent's Motion to Dismiss (ECF No. 8),
and DISMISSES the Petition (ECF No. 1).
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
court concludes upon its own careful review of the record
that the factual and procedural summation in the Report and
Recommendation is accurate, and the court adopts this
summary. The court will only recite herein facts pertinent to
the analysis of Petitioner's Objections.
February 11, 2015, Petitioner was convicted, in a prison
disciplinary hearing, of striking another inmate
(see ECF No. 1-1 at 8), and, he alleges, his
punishment included a loss of good time credit (see
id.; ECF No. 1 at 9; ECF No. 1-4 at 11). Petitioner also
alleges that his requests to produce witnesses at the hearing
who would testify regarding the underlying incident were
denied, which, he claims, violated his rights under the
Fourteenth Amendment. (ECF No. 1-4 at 2-10.)
filed a Step 1 administrative grievance with the South
Carolina Department of Corrections (“SCDC”),
which was denied, and a Step 2 grievance, which was also
denied. (ECF No. 1 at 6.) Thereafter, Petitioner submitted a
notice of appeal to the South Carolina Administrative Law
Court (“ALC”). The Clerk's Office of the ALC
refused to file the appeal and, instead, returned it to
Petitioner along with a memorandum. (ECF No. 1-1 at 1.)
Citing S.C. Code Ann. § 1-23-670 (Supp. 2015),
memorandum stated: “Our records indicate you have filed
3 appeals in this calendar year and therefore the appeal
attached is being returned and will not be processed unless
it is accompanied by the appropriate fee.”
response, Petitioner filed in the ALC a motion to compel the
Clerk's Office to file his appeal or, in the alternative,
to proceed in forma pauperis. (Id. at 13-14.) As a
ground for the motion, Petitioner argued that, because he is
indigent and because the case involved fundamental rights,
the § 1-23-670 filing fee must be waived. (Id.
(citing Stoudemire v. S.C. Dep't of Corr., No.
8:08-03866-HFF-BHH, 2009 WL 2207819 (D.S.C. July 23, 2009);
Martin v. State, 471 S.E.2d 134 (S.C. 1995)).)
Petitioner alleges that the ALC Clerk's Office returned
his motion to him unfiled. (ECF No. 1-4 at 1.)
then apparently filed a petition for a writ of mandamus in
the Supreme Court of South Carolina and simultaneously moved
for the Supreme Court to waive the filing fee that applied to
the mandamus petition. (See ECF No. 1-1 at 18.)
Speaking for the Supreme Court, the Chief Justice denied the
motion to waive the filing fee and, because it could not be
accepted absent the filing fee, dismissed the mandamus
petition. (Id.); see S.C. App. Ct. R.
240(d) & n.1 (setting $25 fee to file petitions in
filed the instant Petition on November 16, 2015, seeking
review of his Fourteenth Amendment claims. (ECF No. 1-3 at 1;
ECF No. 1-4 at 2-3.) On February 17, 2016, Respondent filed
his Motion to Dismiss, arguing that dismissal was warranted
because Petitioner had failed to exhaust his state court
remedies or had procedurally defaulted on his claims. (ECF
No. 8.) The Magistrate Judge concluded that, because
Petitioner had failed to perfect the filing of his appeal in
the ALC, he had failed to exhaust his state court remedies.
(ECF No. 14 at 3-7.) Accordingly, the Magistrate Judge
recommended that the Petition be dismissed. (Id. at
7-8.) In his Objections, Petitioner argues essentially that
the Magistrate Judge erred by not taking into account that
the ALC's refusing to file his appeal based on the §
1-23-670 filing fee constituted a denial of access to the
courts in a manner inconsistent with federal and South
Carolina law. (ECF No. 16 at 1-4.)
LEGAL STANDARD AND ANALYSIS
Standard of review
Magistrate Judge's Report and Recommendation is made in
accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02 for the District of South Carolina. The Magistrate
Judge makes only a recommendation to this court. The
recommendation has no presumptive weight. The responsibility
to make a final determination remains with this court.
See Matthews v. Weber, 423 U.S. 261, 270-71 (1976).
This court is charged with making a de novo
determination of those portions of the Report and
Recommendation to which specific objections are made, and the
court may accept, reject, or modify, in whole or in part, the
Magistrate Judge's recommendation, or recommit the matter
with instructions. See 28 U.S.C. § 636(b)(1).
The exhaustion requirement
seeking federal habeas review of a claim, a [state prisoner]
ordinarily must raise that claim in the state court,
complying with state procedural rules and exhausting
available state remedies.” Gray v. Zook, 806
F.3d 783, 797-98 (4th Cir. 2015) (citing Coleman v.
Thompson, 501 U.S. 722, 750 (1991)). “[W]hen a
habeas petitioner fails to exhaust state remedies for a
claim, federal review is not available until the petitioner .
. . returns to state court” and exhausts his available
state remedies. Id. (citing Breard v.
Pruett, 134 F.3d 615, 619 (4th Cir. 1998)). “In
habeas, state-court remedies are described as having been
‘exhausted' when they are no longer available,
regardless of the reason for their unavailability.”
Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). Thus, a
petitioner satisfies the exhaustion requirement by either
fully exhausting his state remedies or “demonstrat[ing]
that such an attempt would be futile.” Gray,
806 F.3d ...