United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE
an action seeking habeas corpus relief under 28 U.S.C. §
2254. [Doc. 1.] Petitioner is a prisoner in the custody of
the South Carolina Department of Corrections
(“SCDC”) at Tyger River Correctional Institution.
[Id.] The Petition is subject to summary dismissal.
to online court records from the Spartanburg County 7th
Judicial Circuit Public Index, Petitioner is currently
serving a twenty-five (25) year term of imprisonment under a
sentence imposed on November 2, 2006, following a conviction
in the Spartanburg County Court of General Sessions for the
crime of trafficking in cocaine, 10g or more, but less than
28g, 3rd or subsequent offense. See Spartanburg
County 7th Judicial Circuit Public Index,
PublicIndex/PISearch.aspx (search case number
“K101224") (last visited June 5, 2018) (Indictment
No. 2006GS4203329). Petitioner alleges that, in March 1998, he
pled guilty in federal court to possession with intent to
distribute 14 grams of crack cocaine and was sentenced to 84
months imprisonment. [Doc. 1 at 1.] Petitioner did not file a
direct appeal for that conviction and now alleges that he
“was simply not informed that I could [appeal] from my
attorney at the time.” [Id. at 2, 5.]
Petitioner alleges that his guilty plea resulting in the 1998
conviction was “involuntary.” [Id. at
5.] According to Petitioner, that conviction arose from a
traffic stop wherein the officer claimed to recognized
Petitioner as driving under a suspended license.
[Id.] However, that officer had never stopped
Petitioner before. [Id.] Petitioner's attorney
at that time informed Petitioner that his 4th Amendment
rights had been violated by the officer, but Petitioner's
attorney never filed anything challenging the stop.
[Id. at 6.] Petitioner contends that his attorney
explained that he was “going to look into why the
government was treating [Petitioner's] case the way it
did.” [Id.] Petitioner alleges the officer did
not have reasonable suspicion or probable cause to initiate a
traffic stop and that he did not have any prior encounters
with Petitioner. [Id.] Instead, Petitioner contends,
the officer falsified his incident report. [Id.]
Petitioner's attorney also never informed him that he
could enter a conditional plea of nolo contendere and never
filed a suppression motion; instead, the attorney
“allowed Petitioner to just plead guilty.”
[Id. at 7.] Because of Petitioner's 1998
conviction, the offense underlying his current state court
conviction was treated as a 3rd offense, and, as a result,
the trial judge in the state court proceedings had no choice
but to sentence Petitioner to the mandatory minimum term of
25 to 30 years imprisonment, which he is currently serving.
[Id.] Had Petitioner been charged with a 2nd offense
instead, the trial judge would have had a range of 5 to 30
years and the plea offer would have been significantly lower.
[Id.] In light of this, Petitioner contends, his
former attorney violated his Sixth Amendment rights by
allowing Petitioner to plead guilty in federal court to the
1998 charge, for which Petitioner could have been acquitted
and which is causing “continuing injury to
alleges he filed a post-conviction relief (“PCR”)
action challenging his current state court conviction and
sentence in the Spartanburg County Court of Common Pleas at
case no. 2008-CP-42-2240, which was dismissed on July 29,
2009, but Peitioner did not know that he could raise the
issue in his PCR action that he now seeks to raise in the
instant Petition. [Id. at 9-10.] Petitioner claims
that he never talked to his court-appointed PCR attorney,
there was never any discussion of any type of strategy for
the PCR proceedings, and that an associate from his
attorney's office came to interview him, but stated he
was “not a criminal attorney and that he doesn't
argue criminal cases . . . [and that] he hated my case fell
into his lap.” [Id. at 10-11.] Now, Petitioner
wishes to collaterally attack the prior conviction that was
used to enhance his current sentence. [Id. at
appears to assert a single ground for relief, challenging his
“Involuntary Plea to the 1997 charge, and 1998
conviction. [Id. at 5.] Petitioner alleges he
previously filed a habeas petition in this Court at case No.
8:12-cv-2717-JMC-JDA, which raised challenges to his current
state conviction and sentence. [Id. at 16.]
Petitioner alleges that the instant Petition is timely
because his prior conviction “has clear collateral
consequence[s] in that it would add at least 25 yrs. to a
future sentence in a state conviction. A criminal
defendant's suffering collateral legal consequences from
a sentence already served permits him to have his reviewed
[sic] in this court on the merits.”
[Id. at 18.] For his relief, Petitioner seeks
“reversal of conviction, or be allowed to challenge
that stop, which resulted in the charge itself.”
[Id. at 19.]
to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02(B)(2)(c) DSC, the undersigned is authorized
to review such petitions for relief and submit findings and
recommendations to the district court. Petitioner filed this
action in forma pauperis pursuant to 28 U.S.C. § 1915.
This statute authorizes the Court to dismiss a case if it is
satisfied that the action fails to state a claim on which
relief may be granted, is frivolous or malicious, or seeks
monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B); see also Denton
v. Hernandez, 504 U.S. 25 (1992); Neitzke v.
Williams, 490 U.S. 319, 324-25 (1989); Haines v.
Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md.
House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v.
Baskerville, 712 F.2d 70 (4th Cir. 1983).
28 U.S.C. § 2254, habeas relief may be extended to a
prisoner only when he “is in custody in violation of
the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Thus, a federal
court has jurisdiction over such a petition only if the
petitioner is “in custody” and the custody is
allegedly “in violation of the Constitution or laws or
treaties of the United States.” Id.;
Maleng v. Cook, 490 U.S. 488, 490 (1989). Pursuant
to Rule 4 of the Rules Governing Section 2254 Cases, this
Court is required to preliminarily review a petitioner's
habeas petition and determine whether it “plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief.” Pursuant to this
rule, a district court is “authorized to dismiss
summarily any habeas petition that appears legally
insufficient on its face.” McFarland v. Scott,
512 U.S. 849, 856 (1994). As a pro se litigant,
Petitioner's pleadings are accorded liberal construction
and held to a less stringent standard than formal pleadings
drafted by attorneys. See Erickson v. Pardus, 551
U.S. 89, 93-94 (2007) (per curiam). However, even under this
less stringent standard, the instant Petition is subject to
summary dismissal. The requirement of liberal construction
does not mean that the court can ignore a clear failure in
the pleading to allege facts which set forth a claim
cognizable in a federal district court. See Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.
Court Lacks Jurisdiction
seeks to challenge, pursuant to 28 U.S.C. § 2254, the
collateral consequences of a conviction and sentence imposed
upon him in federal court in 1998. However, Petitioner is no
longer in custody under that sentence. Pursuant to §
2254, a writ of habeas corpus is available only if a prisoner
demonstrates that he is “in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. 2254(a) (emphasis added).
This statutory language has been consistently interpreted as
requiring that the habeas petitioner be “in
custody” under the conviction or sentence under attack
at the time his petition is filed. See, e.g., Carafas v.
LaVallee, 391 U.S. 234, 238 (1968). Furthermore, a
prisoner can utilize habeas corpus proceedings only if he is
challenging the fact or duration of his present confinement.
Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). Put
differently, “[f]ederal courts lack jurisdiction to
consider a habeas petition challenging a sentence which has
fully expired at the time the petition is filed.”
Hardy v. Warden, No. 6:06-cv-1796-HMH-WMC, 2006 WL
2996107, at *3 (D.S.C. Oct. 19, 2006) (citing Maleng v.
Cook, 490 U.S. 488 (1989)). Here, Petitioner is no
longer serving a sentence for the 1998 offense. Because
Petitioner's sentence has expired on this conviction, he
is no longer in custody on this conviction, and, therefore,
this Court lacks subject matter jurisdiction over his habeas
petition with respect to this conviction. See Fields v.
Cartledge, No. 0:16-cv-2463-TMC, 2017 WL 3140910, at *3
(D.S.C. July 25, 2017) (citing Steverson v. Summers,
258 F.3d 520, 523 (6th Cir. 2001)).
Petitioner asserts this Court may properly evaluate the
Petition because the collateral consequences of the expired
conviction he seeks to challenge impact the sentence he is
now serving. Thus, the instant Petition presents the issue of
whether a state prisoner can challenge a current sentence
based on an allegedly unconstitutional prior conviction for
which he has already served his sentence. In addressing this
precise question, the Supreme Court held that federal
post-conviction relief is unavailable to state prisoners
through a petition for a writ of habeas corpus under 28
U.S.C. § 2254 when the prisoner challenges a current
sentence on the ground that it was enhanced based on an
allegedly unconstitutional prior conviction for which the
petitioner is no longer in custody. Lackawanna Cty. Dist.
Attorney v. Coss, 532 U.S. 394, 396-97 (2001). Further,
the Supreme Court has explained, where “a prior
conviction has not been set aside on direct or collateral
review, that conviction is presumptively valid and may be
used to enhance” a subsequent sentence. Daniels v.
United States, 532 U.S. 374, 382 (2001). “This
rule is subject to only one exception: If an enhanced [ ]
sentence will be based in part on a prior conviction obtained
in violation of the right to counsel, the defendant may
challenge the validity of his prior conviction during his [ ]
sentencing proceedings.” Id.
Petitioner challenges his current state sentence by arguing
that a prior federal conviction, which was used to enhance
the sentence he is now serving, was unconstitutional. While
the Supreme Court in the cases above recognized certain
limited circumstances which would permit this Court to review
the grounds for ...