United States District Court, D. South Carolina, Beaufort Division
Timothy M. Cain United States District Judge.
Robert Lee Foster is seeking habeas corpus relief pursuant to
28 U.S.C. § 2254. Before the court is the magistrate
judge's Report and Recommendation (“Report”),
recommending that Petitioner's petition be summarily
dismissed as successive and without requiring Respondent to
file a return . (ECF No. 10). Petitioner was advised of his
right to file objections to the Report. (ECF No. 10 at 7).
Petitioner filed objections (ECF No. 12).
Report has no presumptive weight and the responsibility to
make a final determination remains with this court. See
Mathews v. Weber, 423 U.S. 261, 270-71 (1976). In the
absence of objections to the Report, this court is not
required to provide an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198,
199 (4th Cir. 1983). Rather, “in the absence of a
timely filed objection, a district court need not conduct a
de novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.” Diamond v. Colonial
Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed.R.Civ.P. 72 advisory committee's
Petition, Petitioner challenges his 2008 criminal conviction
in Spartanburg County, South Carolina. As the magistrate
judge noted, Petitioner has previously filed a § 2254
habeas petition in regard to this conviction, Foster v.
Reynolds, No. 9:14-3853-TMC-BM (D.S.C. filed Oct. 2,
2014), and he has not received authorization to file a
successive petition from the Fourth Circuit Court of Appeals.
Therefore, as the magistrate judge determined, this court has
no jurisdiction to consider the instant § 2254 Petition.
See In re Williams, 444 F.3d at 236-37 (4th Cir.
2006); United States v. Winestock, 340 F.3d at 205
(4th Cir. 2003). Reviewing Petitioner's objections,
Petitioner has not addressed the court's lack of
jurisdiction. Accordingly, the court dismisses
Petitioner's habeas claims which challenge the validity
of his 2008 conviction and sentence.
Report, the magistrate judge also noted that Petitioner may
be attempting to raise an issue regarding the calculation of
his sentence. (Report at 5 n.6). The magistrate judge
determined that, even if Petitioner was trying to raise such
a claim, that claim should be dismissed as Petitioner failed
to assert in his Petition that he had exhausted his
administrative remedies. Id. The magistrate judge is
correct that claims regarding Petitioner's sentence are
governed by the Prison Litigation Reform Act
(“PLRA”), if construed as an action brought
pursuant to 42 U.S.C. § 1983; and Petitioner is required
to exhaust administrative remedies prior to bringing a §
1983 action. See 42 U.S.C. § 1997e(a). However,
he is not required to affirmatively show exhaustion in his
complaint. See Jones v. Bock, 549 U.S. 199, 216
(2007). Failure to exhaust is an affirmative defense that
must be raised by the defendant. Id. And a district
court, at the pleadings stage, may not dismiss a claim based
on the plaintiff's failure to affirmatively show
exhaustion, even when the court has first allowed the
plaintiff to address the issue. See Custis v. Davis,
851 F.3d 358, 361-62 (4th Cir. 2017).; Wilcox v.
Brown, 877 F.3d 161 (4th Cir. 2017).
“Nevertheless, despite the fact that failure-to-exhaust
is an affirmative defense, a prisoner's complaint may be
dismissed for non-exhaustion ‘in the rare case where
failure to exhaust is apparent from the face of the
complaint.'” Wilson, 877 F.3d at 167
(citing Anderson v. XYZ Corr. Health Servs., Inc.,
407 F.3d 674, 682 (4th Cir. 2005)).
not apparent from the face of the Petition, particularly when
construed in the light most favorable to Petitioner, whether
Petitioner has failed to exhaust his administrative remedies
or whether he exhausted all administrative remedies available
to him. Accordingly, the court remands this action to the
magistrate judge for further handling of this claim.
thorough review, the court adopts the Report (ECF No. 10) in
part. Therefore, the habeas claims challenging the validity
of his 2008 conviction and sentence are
DISMISSED without prejudice and without
requiring Respondent to file a return. However,
Petitioner's claims regarding the alleged miscalculation
of his sentence are remanded to the magistrate judge for
addition, a certificate of appealability will not issue to a
prisoner seeking habeas relief absent “a substantial
showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). A prisoner satisfies this standard
by demonstrating that reasonable jurists would find both that
his constitutional claims are debatable and that any
dispositive procedural rulings by the district court are also
debatable or wrong. See Miller-El v. Cockrell, 537
U.S. 322, 336 (2003); Rose v. Lee, 252 F.3d 676, 683
(4th Cir. 2001). In this case, the court finds that the
petitioner has failed to make a substantial showing of the
denial of a constitutional right. Accordingly, the court
declines to issue a certificate of appealability.
IS SO ORDERED.
In accordance with 28 U.S.C. §
636(b)(1)(B) and Local Civil Rule 73.02, DSC, this matter was
initially referred to a magistrate judge.
The court notes that the report refers
to ECF No. 17. (Report at 5 n.6). This reference is clearly a
typographical error, and the citation should be to ECF No.
Petitioner's claim could also be
construed liberally as an action under 28 U.S.C. § 2241.
Unlike petitions brought under § 2254, which challenge
the validity of a state court conviction and sentence,
petitions brought under § 2241 generally challenge the
execution or implementation of a sentence, such as parole
matters, sentence computation, calculation of good time
credits, prison disciplinary actions, and transfers.”
Clemmons v. South Carolina, No. 0:08-607-RBH, 2008
WL 2845636, *1 (D.S.C. July 18, 2008). The Fourth Circuit has
recognized that the circuits are split on whether § 2241
or § 2254 is the proper statute under which a state
inmate challenging the execution of his state court sentence