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Young v. Warden of Evans Correctional Institution

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

September 19, 2017

Derrick Antron Young, Petitioner,
v.
Warden of Evans Correctional Institution, Respondent.

          ORDER

          TIMOTHY M. CAIN UNITED STATES DISTRICT JUDGE

         Petitioner Derrick Antron Young (“Petitioner”), a state prisoner proceeding pro se and in forma pauperis, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before the court is the magistrate judge's Report and Recommendation (“Report”), recommending that Respondent's motion for summary judgment (ECF No. 11) be denied, Respondent's motion to dismiss for failure to exhaust state remedies (ECF No. 15) be granted without prejudice, and Petitioner's motions for default judgment (ECF No. 19) and to stay proceedings (ECF No. 22) be denied. The Report further recommends that adopting the Report renders moot Petitioner's motion to amend his complaint (ECF No. 39). Petitioner was advised of his right to file objections to the Report (ECF No. 45 at 12), and he filed timely objections. (ECF No. 50).

         The Magistrate Judge makes only a recommendation to the court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the court 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). However, the court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         I. Background/Procedural History

         The magistrate judge set forth the background and procedural history in his Report. (ECF No. 45 at 1-8). Briefly, Petitioner, currently incarcerated at Evans Correctional Institution, was indicted by a Greenville County Grand Jury for resisting arrest and assault; possession with intent to distribute cocaine base; trafficking cocaine; and trafficking cocaine base. Id. at 1. Petitioner waived presentment on a charge of failure to stop for a blue light. Id.

         On October 9, 2012, Petitioner, represented by retained counsel Christopher Posey, pled guilty to all of the aforementioned charges. Id. Petitioner was sentenced to ten years incarceration for resisting arrest with assault; thirteen years for possession with intent to distribute cocaine base, second offense; thirteen years for trafficking cocaine (28-100 grams), second offense; thirteen years for trafficking cocaine base (28-100 grams), first offense; and three years for failure to stop for a blue light. Petitioner did not appeal his convictions or sentences.

         Petitioner filed an application for post-conviction relief (“PCR”) (2013-CP-23-4575) on August 21, 2013. Id. at 2. After a hearing, the PCR court denied Petitioner relief in an order filed November 17, 2014. Id. at 2-3. Petitioner filed a timely appeal of the denial of his PCR application. Id. at 3. On November 9, 2016, the South Carolina Supreme Court denied Petitioner's petition for a writ of certiorari. Id. The remittitur was filed December 15, 2016. Id.

         Petitioner filed a second PCR application (2015-CP-23-5319) on August 27, 2015. Id. On May 6, 2016, Petitioner filed a motion to consolidate the appeal in his first PCR action with his second PCR application. Id. at 4. On May 19, 2016, the Supreme Court of South Carolina dismissed Petitioner's motion finding that no extraordinary reason existed to entertain it pursuant to Key v. Currie, 406 S.E.2d 356 (S.C. 1991). Id. On August 9, 2016, the State filed its return and motion to dismiss requesting that Petitioner's second PCR application be summarily dismissed because it was successive, untimely, and failed to make a prima facie showing of newly discovered information. Id. On September 7, 2016, Petitioner filed objections. Id. Petitioner's second PCR application is presently pending in the Grenville County Court of Common Pleas. See Greenville County 13th Judicial Circuit Public Index, https://www2.greenvillecounty.org/SCJD/PublicIndex/PISearch.aspx (enter “Derrick Young” and “search, ” and click on “2015CP2305319”) (last checked September 19, 2017).[1]

         Petitioner filed the instant habeas corpus petition on August 15, 2016, raising five grounds for relief. (ECF No. 1). On October 19, Respondent filed a motion for summary judgment (ECF No. 11), a motion to dismiss for failure to exhaust state remedies (ECF No. 19), and a return and memorandum in support of the motion to dismiss (ECF No. 12). On October 24, 2016, Petitioner filed a motion for default judgment. (ECF No. 19). On November 4, 2016, Petitioner filed a response in opposition to Respondent's dispositive motions (ECF No. 21) and a motion to stay proceedings (ECF No. 22). On November 8, 2016, Respondent filed a reply to Petitioner's response to the motion to dismiss (ECF No. 23) and a response in opposition to Petitioner's motion to stay (ECF No. 24). On March 1, 2017, Petitioner filed a motion to amend his petition (ECF No. 39) and Respondent filed a response in opposition on March 14, 2017 (ECF No. 40). Petitioner filed a motion for extension of time to file a reply on March 22, 2017 (ECF No. 47), which the court hereby grants, and a reply (ECF No. 49) on March 27, 2017, which the court considers in its analysis below.

         II. Discussion

         In his report, the magistrate judge recommended that the court deny Respondent's motion for summary judgment (ECF No. 11) and grant Respondent's motion to dismiss Petitioner's habeas petition without prejudice (ECF No. 15) for failure to exhaust state remedies because Petitioner's second PCR action remains pending in state court. The magistrate judge recommended that Petitioner's motion to stay the instant petition (ECF No. 22) be denied because, while the petition contains both exhausted and unexhausted claims, Petitioner failed to make the requisite showings. See Rhines v. Weber, 544 U.S. 269, 278 (2005) (A district court should stay, rather than dismiss a mixed petition “if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.”). Further, the magistrate judge recommended Petitioner's motion for entry of default (ECF No. 19) be denied because the docket shows that Respondent timely filed a return and dispositive motions in the present action. Finally, the magistrate judge noted that if the district court adopts the recommendation, Petitioner's motion to amend (ECF No. 39) will be rendered moot.

         A. Objections

         Neither party addressed the magistrate judge's recommendations that Respondent's motion for summary judgment (ECF No. 11) and Petitioner's motion for entry of default (ECF No. 19) be denied. Finding no clear error, the court adopts the magistrate judge's recommendation and denies Respondent's motion for summary judgment (ECF No. 11) and Petitioner's motion for entry of default (ECF No. 19).

         Petitioner raises four specific objections to the magistrate judge's Report. First, he asserts that the magistrate judge erred by finding that his second PCR application is proceeding on its normal course without inordinate delay. Petitioner does not dispute that his PCR proceedings are ongoing. He claims that, at the time of his objections, there has ...


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