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Smalls v. Warden of Kirkland Correctional Institution

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

March 7, 2017

Leroy K. Smalls, II, a.k.a. Leroy K. Smalls, #211241, Petitioner,
v.
Warden of Kirkland Correctional Institution, Respondent.

          ORDER AND OPINION

         Petitioner Leroy L. Smalls, II, proceeding pro se and in forma pauperis, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) This matter is before the court for review of the Report and Recommendation (“Report”), filed on September 28, 2016 by the Honorable Bristow Marchant. The Report recommends that this court moot Respondent's Motion for Summary Judgment (ECF No. 10) if Petitioner timely notifies the court of his desire to pursue his claim under 42 U.S.C. § 1983. (ECF No. 25 at 10-11.) Alternatively, if Petitioner fails to timely notify the court, then the Report recommends that this court grant Respondent's Motion for Summary Judgment (ECF No. 10), and dismiss Petitioner's Petition (ECF No. 1) with prejudice. (ECF No. 25 at 11.)

         For the following reasons, the court ADOPTS the Report (ECF No. 25), GRANTS Respondent's Motion for Summary Judgment (ECF No. 10), and DISMISSES Petitioner's Petition (ECF No. 1) with prejudice.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The Report contains a thorough recitation of the relevant factual and procedural background of the matter. (ECF 25 at 2-6.) The court concludes, upon its own careful review, that the Report sets forth the relevant facts and legal standards, which it incorporates herein without recitation. Petitioner timely filed his objection to the Report on October 13, 2016. (ECF No. 27.)

         II. LEGAL STANDARD

         The Magistrate Judge's Report 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, which 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). The court reviews de novo only those portions of a Magistrate Judge's recommendation to which specific objections are filed. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court reviews those portions that are not objected to, including those portions to which only “general and conclusory” objections have been made, for clear error. Id. The court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).

         III. ANALYSIS

         Petitioner objects and generally rehashes his earlier assertion that “his claims are cognizable in federal habeas” on “grounds of ‘immediate or speedier release.'” (ECF No. 27 at 1.) Specifically, Petitioner argues that, due to a prison disciplinary hearing, (1) “he has suffered denial at parole as he has pointed out in his petition submitted” and (2) “[the disciplinary hearing is] a basis for continued denial in releasing his [sic] from maximum segregation . . . another claim that Petitioner laid out in his petition that the Magistrate failed to address.” (ECF No. 27 at 2.)

         A. 42 U.S.C. § 2254

         The Magistrate Judge's Report explains that Petitioner “is not entitled to habeas relief from this [c]ourt under the facts presented because he did not lose any good time credits as a result of the disciplinary action imposed, and the conviction at issue has also not necessarily effected the duration of his sentence.” (ECF No. 25 at 6.) The court agrees.

         Petitioner objects to the Report and argues that the “parole board informed Petitioner that he got denied not for his 1992 murder conviction but because of his disciplinary guilty verdict of homicide.” (ECF No. 27 at 3.) However, a review of the two parole board decisions suggests otherwise.

         On February 7, 2013, the State of South Carolina Department of Probation, Parole and Pardon Services (“DPPPS”) issued the following notice of rejection to Petitioner:

After careful consideration of: (1) the characteristics of your current offense(s), prior offense(s), prior supervision history, prison disciplinary record, and/or prior criminal record, as described in the findings of fact below; (2) the factors published in Department Form 1212 (Criteria for Parole Consideration); and (3) the factors outlined in Section 24-21-640 of the South Carolina Code of Laws, the Parole Board concludes that parole must be denied.
FINDINGS OF FACT: (1) Nature And Seriousness Of Current Offense (2) Use Of Deadly Weapon In ...

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