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McFadden v. Dunlap

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

September 19, 2016

Bernard McFadden, Petitioner,
David Dunlap, Warden of Kershaw Correctional Institution, Respondent.


         Petitioner 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).

         In 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).


         The 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.

         On 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.)

         Petitioner 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), [1] the 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.” (Id.)

         In 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.)

         Petitioner 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 Supreme Court).

         Petitioner 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.)


         A. Standard of review

         The 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).

         B. The exhaustion requirement

         “Before 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 ...

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