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Green v. Dunlap

United States District Court, D. South Carolina, Rock Hill Division

January 30, 2017

Gregory Green, Petitioner,
v.
David Dunlap, Warden, Respondent.

          ORDER

          R. Bryan Harwell United States District Judge.

         Petitioner Gregory Green, a state prisoner proceeding pro se, initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See ECF No.[1] 1. The matter is now before the Court for review of the Report and Recommendation (R & R) of United States Magistrate Judge Paige J. Gossett.[2] See R & R, ECF No. 21. The Magistrate Judge recommends granting Respondent's motion for summary judgment and dismissing Petitioner's § 2254 petition without prejudice for failure to exhaust his state remedies. R & R at 1, 8. Petitioner has filed objections to the R & R. See ECF Nos. 23 & 24.

         Standard of Review[3]

         The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge's recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a de novo review of those portions of the R & R to which specific objections are made, and it may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

         The Court must engage in a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate [Judge]'s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge's recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).

         Procedural History[4]

         The State of South Carolina indicted Petitioner for trafficking in heroin, second offense, in November 2013. See ECF No. 9-1. Petitioner pled guilty to trafficking in heroin, first offense, in May 2014, and did not file a direct appeal. See ECF No. 9-2. Petitioner filed a state application for post-conviction relief (PCR) in November 2014, and the state PCR court held an evidentiary hearing in February 2016. See ECF Nos. 9-4 & 13-1. The PCR court denied the application by issuing a Form 4 order[5] on February 11, 2016, and a formal order on March 11, 2016. See ECF Nos. 9-7 & 9-8. Petitioner's PCR counsel filed a notice of appeal from the formal order on March 25, 2016. See ECF No. 9-12. Petitioner's PCR appeal is currently pending in the South Carolina Supreme Court.[6] See ECF No. 9-12.

         On March 14, 2016, [7] Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See ECF No. 1. Respondent answered the petition by filing a return and a motion for summary judgment. See ECF Nos. 9 & 10. The Magistrate Judge issued an R & R recommending that the Court grant Respondent's motion for summary judgment and dismiss Petitioner's § 2254 petition without prejudice for failure to exhaust his state remedies. R & R at 1, 8. Petitioner filed timely objections[8] to the R & R, and Respondent filed a timely reply to Petitioner's objections.[9] See ECF Nos. 23, 24, & 25.

         Discussion

         The Magistrate Judge recommends dismissing Petitioner's § 2254 federal habeas petition without prejudice because he has failed to exhaust his state remedies. R & R at 1, 8. The Magistrate Judge's R & R sets forth the correct law pertaining to the exhaustion requirements of 28 U.S.C. § 2254, and the Court adopts and incorporates that law by reference without repeating it here. See R & R at 5-8.

         Petitioner's objections center on an order that the South Carolina Supreme Court issued on March 10, 2016. See Pet.'s Objs. [ECF No. 23]; Pet.'s Supp. Objs. [ECF No. 24]. As the Magistrate Judge explains in the R & R, Petitioner's PCR counsel originally filed a notice of appeal from the Form 4 order that the PCR court issued on February 11, 2016. On March 10, 2016, the South Carolina Supreme Court issued an order dismissing the appeal without prejudice, vacating the Form 4 order because it did not comply with South Carolina law (specifically S.C. Code Ann. § 17-27-80, which requires the PCR court to make specific findings of fact and conclusions of law), and remanding the matter to the circuit court with instructions to enter a written order complying with § 17-27-80 (hereinafter, “the March 10, 2016 order”). Respondent filed a copy of the March 10, 2016 order as an attachment to its return to Petitioner's § 2254 petition. See ECF No. 9-10. Petitioner has attached a copy of the March 10, 2016 order to his objections. See ECF No. 23-1.

         Petitioner first asserts the R & R is “completely devoid of any reference to the S.C. Supreme Court Order dated March 10, 2016.” Pet.'s Objs. at 2. This assertion is incorrect. The Magistrate Judge refers to the March 10, 2016 order in a footnote on page two of the R & R. See R & R at 2 n.1 (citing ECF No. 9-10).[10]

         Next, Petitioner challenges the Magistrate Judge's substantive finding that he has not exhausted his state PCR remedies. Pet.'s Objs. at 3-4. He argues the March 10, 2016 order constitutes “‘one complete round of the State's established judicial post-conviction appellate review process'” pursuant to the United States Supreme Court's decision in O'Sullivan v. Boerckel, 526 U.S. 838 (1999). Pet.'s Objs. at 3 (quoting O'Sullivan, 526 U.S. at 845). He contends that by issuing the March 10, 2016 order, the South Carolina Supreme Court “could not have decided to vacate the [Form 4] PCR order without implicitly ruling on the merits of the claim.” Id. at 4. In short, Petitioner argues the March 10, 2016 order “was a ruling on the merits, ” see Pet.'s Supp. Objs. at 2, and he “asserts that he has exhausted his state court remedies by presenting his federal claims to the state's highest court pursuant to O'Sullivan.” Id.

         The Magistrate Judge determined Petitioner misinterpreted O'Sullivan, see R & R at 7, and the Court agrees. A plain reading of O'Sullivan and related cases addressing the exhaustion doctrine indicates a state prisoner seeking relief under 28 U.S.C. § 2254 “must exhaust his remedies in state court” and must “give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts.” O'Sullivan, 526 U.S. at 842, 845 (emphasis added); see Duncan v. Walker, 533 U.S. 167, 178-79 (2001) (“The exhaustion requirement of § 2254(b) ensures that the state courts have the opportunity fully to consider federal-law challenges to a state custodial judgment before the lower federal courts may entertain a collateral attack upon that judgment.”); Hedrick v. True, 443 F.3d 342, 369 (4th Cir. 2006) (“The ...


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