United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE
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.
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).
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.
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,
neglect](last visited Aug. 23, 2018). The same day, the CSC with
a minor charge was disposed with the disposition of
"nolle prosequi indicted." See
09897988 l l
visited Aug. 23, 2018).
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. 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.
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).
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)).
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. 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). 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.
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].
states in his Petition that his appeal of his PCR is pending.
ECF No. 1 at 9. 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 ...