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Burnett v. Pate

United States District Court, D. South Carolina

August 27, 2018

William Leon Burnett, Petitioner,
v.
John R. Pate, A.C.I., Respondent.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE

         The Petitioner, William Leon Burnett, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241. Petitioner was an inmate at the Allendale Correctional Institution (ACI), part of the South Carolina Department of Corrections (SCDC), at the time he filed this action. It appears that he was released from custody shortly thereafter and is now detained at the Al Cannon Detention Center in North Charleston, South Carolina. Petitioner files this action in forma pauperis under 28 U.S.C. § 1915.

         Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in the above-captioned case pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat, l2l4, and in light of the following precedents: 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 (l972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Prose petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow for the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980); Fine v . City of New York, 529 F.2d 70, 74 (2d Cir. 1975).

         Nonetheless, this Court is charged with screening Petitioner's lawsuit to determine if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b). 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 currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387.391 (4th Cir. 1990). Such is the case here.

         Discussion

         Records from Spartanburg County indicate that Petitioner was arrested on charges of criminal sexual conduct (CSC)-first degree, unlawful neglect of a child, and CSC with a minor or attempt - victim under eleven years of age - first degree. On October 4, 2012, Petitioner pled guilty to the charges of CSC-first degree and unlawful neglect of a minor and received concurrent sentences of ten years suspended to seven and one half years with five years probation. See Spartanburg County Seventh Judicial Circuit Public Index, http://publicindex.sccourts.org/Spartan burg/Publicindex/CaseDetails.aspx?County=42&CourtAgency=42001 &Casenum=20l2GS4201465A&CaseType=C&HKey=47808210277787197110117551005411674571078680110438610488741096668104558668545449788484701051224389[CSC-irst];http://publicindex.sccourts.org/Spartanburg/Publiclndex/CaseDetails.aspx?County=42&CourtAgency=42001&Casenum=M757 033&CaseType=C&HKey=1114947907912173557311210747113102696656756854113114114101541047047431148075102438373105771091161004773[child neglect](last visited Aug. 23, 2018).[1] The same day, the CSC with a minor charge was disposed with the disposition of "nolle prosequi indicted." See SpartanburgCountySeventhJudicialCircuitPublicIndex, http://publicindex.sccourts.org/Spartanburg/Publiclndex/CaseDetails.aspx?County=42&CourtAgency=42001& Casenum=M757149&CaseType=C&HKey=555367697810177115112118671221137150109701 09897988 l l 54910047971208310443819710582654710311683871068469 (last visited Aug. 23, 2018).

         It is somewhat unclear what Petitioner is alleging as he states that he is challenging a decision of the SCDC (Petition, ECF No. 1 at 6), but then appears to state grounds for relief that involve his criminal convictions.[2] Petitioner's stated grounds for relief are (1) "Due Process -Procedural - 14th Amendment violation of Sex Registration when not supported by validity of conviction of CSC 1st Degree: Duty of Prison Administration to check into such suspicious information reported by prison inmate, and (2) "False Imprisonment - after discovered evidence obtained through Freedom of Information Act on October 1, 2015 and August 5, 2016 - followed it upon motion for new trial on October 2016, and filed P.C.R. on September 23, 2016 for Rule 29(b) and Rule 60(b)." Petition, ECF No. 1 at 8-9. Then, in the "Relief section of his Petition, Petitioner appears to request non-habeas relief. Specifically, he requests:

To have the Court to Order an[] injunction against Spartanburg County Circuit Judge Mark Hayes, II for miscarriage of justice, as well as a declaratory judgment against Warden John R. Pate for poor administrative judgment to follow inmate's request [to] look into allegations. Finally, to have conviction exonerated before being presented in Washington, D.C.

ECF No. 1 at 9-10.

         Under South Carolina law, a person residing in South Carolina who in South Carolina has pled nolo contendre to CSC -first degree, is required to register as a sex offender. See S.C. Code Ann. § 23-3-430(A), (C)(1). As noted above, Petitioner pled nolo contendre to CSC-first degree. To the extent that Petitioner is only challenging the requirement that he register as a sex offender, his Petition should be dismissed because the Fourth Circuit Court of Appeals has held that the registration requirements imposed on sex offenders does not place the sex offender "in custody" for purposes of habeas jurisdiction. See Wilson v. Flaherty, 689 F.3d 332, 337-38 (4th Cir. 2012). Other circuit courts have unanimously agreed. See, e.g.. Virsnieks v. Smith, 521 F.3d 707 (7th Cir. 2008) ["[G]iven the habeas statute's 'in custody' requirement, courts have rejected uniformly the argument that a challenge to a sentence of registration under a sexual offender statute is cognizable in habeas."]; Leslie v. Randle, 296 F.3d 518 (6th Cir. 2002); Henry v. Luneren, 164 F.3d 1240 (9th Cir. 1999); Williamson v. Gregoire, 151 F.3d 1180 (9th Cir. 1998).

         It may be that Petitioner is challenging his convictions and sentences for CSC-first degree and unlawful neglect. To the extent that Petitioner is trying to do so, it should be noted that the undersigned construes the Petition as seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. See generally In re Wright, 826 F.3d 774, 783 (4th Cir. 2016) ["[W]hen a prisoner being held 'pursuant to the judgment of a State court' files a habeas petition claiming the execution of his sentence is in violation of the Constitution, laws, or treaties of the United States, the more specific § 2254 and all associated statutory requirements shall apply, regardless of the statutory label the prisoner chooses to give his petition."] (internal quotation marks omitted) (quoting Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000)).

         However, any such challenge to Petitioner's convictions under § 2254 should be dismissed because it is apparent from a review of the materials filed in this case that Petitioner has not yet exhausted his state court remedies.[3] With respect to his convictions and sentences, Petitioner may seek a writ of habeas corpus under 28 U.S.C. § 2254 only after he has exhausted his state court remedies. See 28 U.S.C. § 2254(b).[4] The exhaustion requirement is "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991); Lawson v. Dixon, 3 F.3d 743, 749-50 n. 4 (4th Cir. 1993). In Matthews v. Evatt, 105 F.3d 907(4th Cir. 1997), the Fourth Circuit found that "a federal habeas court may consider only those issues which have been 'fairly presented' to the state courts.... To satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court. The burden of proving that a claim has been exhausted lies with the petitioner." Id. at 911 (citations omitted), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011).[5]

         To exhaust state court remedies in South Carolina, a direct appeal may be pursued. See State v. Northcutt, 641 S.E.2d 873 (S.C. 2007). If a direct appeal is filed and is ultimately unsuccessful (or if no direct appeal is filed), a petitioner may file an application for PCR in a court of common pleas. See S.C. Code Ann $ 17-27-10 et seq. (1976); see also Miller v. Harvey, 566 F.2d 879, 880-81 (4th Cir. 1977)[noting that South Carolina's Uniform Post-Conviction Procedure Act is a viable state court remedy]. If a South Carolina prisoner's PCR application is denied or dismissed by a court of common pleas, the petitioner can then file a request for writ of certiorari with a South Carolina appellate court. See S.C. Code Ann § 17-27-100 (1976); Knight v. State, 325 S.E.2d 535 (S.C. 1985). If a petitioner's PCR application is denied by a court of common pleas, the petitioner must seek appellate review in the state courts or federal collateral review of the grounds raised in his PCR application may be barred by a procedural default. See Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004)[finding that exhaustion requires state prisoners to complete at least one complete round of the state's established appellate review process by presenting the ground for relief in a face-up and square fashion].

         Petitioner states in his Petition that his appeal of his PCR is pending. ECF No. 1 at 9.[6] Because it is clear from the face of the petition that Petitioner has potentially viable state court remedies that have not been utilized as to any § 2254 petition, see 28 U.S.C. § 2254(b); this Court should not keep this case on its docket while Petitioner is exhausting his state remedies. See Galloway v. Stephenson,510 F.Supp. 840, 846 (M.D. N.C. 1981)["When state court remedies have not been exhausted, absent ...


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