United States District Court, D. South Carolina, Greenville Division
TIMOTHY M. CAIN UNITED STATES DISTRICT JUDGE
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).
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).
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.
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.
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.
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,
(enter “Derrick Young” and “search, ”
and click on “2015CP2305319”) (last checked
September 19, 2017).
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.
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
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).
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 ...