United States District Court, D. South Carolina, Orangeburg Division
F. Anderson, Jr. United States District Judge
Bernard Wilson, Jr. (“Wilson”) filed this pro se
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 while confined at Kirkland Correctional
Institution of the South Carolina Department of Corrections.
Wilson alleges that his Constitutional rights have been
violated due to ineffective assistance of counsel during his
murder trial in South Carolina state court. (ECF No. 1).
Pursuant to 28 U.S.C. §636(b)(1)(B), and Local Rule
73.02(B)(2)(C) (D.S.C.), this matter was referred to the
to the Rules Governing Section 2254 Cases in the United
States District Courts, the Magistrate Judge thoroughly
examined Wilson's petition to determine if, when
liberally construed, “it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.” SECT 2254
Magistrate Judge assigned to this action then prepared a
thorough Report and Recommendation (“Report”) and
opines that this court should dismiss Wilson's petition
without prejudice for failure to exhaust his state remedies.
The Report sets forth in detail the relevant facts and
standards of law on this matter, and this court incorporates
those facts and standards without a recitation.
was advised of his right to object to the Report, which was
entered on the docket on February 28, 2017. (ECF No. 21).
Wilson filed objections to the Report on March 20, 2017. (ECF
No. 25). Thus this matter is ripe for review.
court is charged with making a de novo determination
of those portions of the Report to which specific objections
are made, and the court may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge,
or recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b)(1).
However, a district court is only required to conduct a
de novo review of the specific portions of the
Magistrate Judge's Report to which an objection is made.
See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b);
Carniewski v. W. Virginia Bd. of Prob. & Parole,
974 F.2d 1330 (4th Cir. 1992). In the absence of specific
objections to portions of the Report of the Magistrate, this
Court is not required to give an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198,
199 (4th Cir. 1983).
asserts a single objection to the Report in which he states
that the exhaustion doctrine is satisfied in South Carolina
if the case has been presented one time in the South Carolina
Court of Appeals or the South Carolina Supreme Court. (ECF
No. 25 p. 2). Wilson avers that he gave South Carolina
“one completed round to resolve any constitutional
issues” and his appeal was dismissed by the South
Carolina Courts. Id.
Wilson's contentions, he has failed to fully exhaust his
state court remedies. A habeas petitioner in state custody
generally must exhaust his state court remedies before
submitting a petition for writ of habeas corpus. See
28 U.S.C. § 2254(b); Longworth v. Ozmint, 377
F.3d 437, 447 (4th Cir. 2004). Therefore, “state
prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete
round of the State's established appellate review
process-which includes petitions for discretionary review
when that review is part of the ordinary appellate review
procedure in the State.” Longworth, at 448.
(internal quotations omitted). This “discretionary
review” includes application for Post-Conviction Relief
(“PCR”) and the subsequent appellate review of
Wilson has stated that his petition for PCR is currently
pending in the South Carolina State Court system. (ECF No.
1-3 p. 2-3). As such, he has failed to exhaust the remedies
available in the state courts. Consequently, any petition for
a writ of habeas corpus is premature at this time.
Accordingly, Wilson's petition must be dismissed.
carefully reviewing the applicable laws, the record in this
case, as well as the Report, this court finds the Magistrate
Judge's recommendation fairly and accurately summarizes
the facts and applies the correct principles of law.
Accordingly, the Court adopts the Report and Recommendation,
and dismisses the petition without prejudice.
because Petitioner has failed to make “a substantial
showing of the denial of a constitutional right, ” a
certificate of ...