United States District Court, D. South Carolina, Beaufort Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING PETITIONER'S PETITION WITHOUT
GEIGER LEWIS UNITED STATES DISTRICT JUDGE
case was filed as a petition for writ of habeas corpus
(petition) under 28 U.S.C. § 2241 (section 2241).
Petitioner is proceeding pro se. The matter is before the
Court for review of the Report and Recommendation (Report) of
the United States Magistrate Judge suggesting
Petitioner's petition be summarily dismissed without
prejudice and without requiring Respondent to file a return.
The Report was made in accordance with 28 U.S.C. § 636
and Local Civil Rule 73.02 for the District of South
Magistrate Judge makes only a recommendation to this 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 (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. §
document filed pro se is ‘to be liberally
construed.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). Courts are not, however, required to
“conjure up questions never squarely presented to
them” or seek out arguments for a party. Beaudett
v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Magistrate Judge filed the Report on August 28, 2018, ECF No.
16, and the Clerk of Court entered Petitioner's
objections to the Report on September 19, 2018, ECF No. 20.
The Court has reviewed the objections, but holds them to be
without merit. Therefore, it will enter judgment accordingly.
raises three objections to his convictions and/or sentences
the Court will briefly address below. First, Petitioner
asserts he was improperly notified of the charge for criminal
sexual conduct-first degree. Second, Petitioner challenges
the conviction that requires him to register as a sex
offender. Finally, Petitioner advances prosecutors improperly
withheld evidence from his attorney. The Magistrate Judge
suggested, to the extent Petitioner sought to challenge his
convictions and/or sentences, his petition was due to be
dismissed because Petitioner has failed to exhaust his State
court remedies, and federal courts generally may not
interfere with pending State court proceedings. The Court
agrees with the Magistrate Judge.
preliminary matter, to the extent Petitioner challenges his
convictions and/or sentences, the Court construes
Petitioner's petition as a motion under 28 U.S.C. §
2254 (section 2254). In re Wright, 826 F.3d 774, 783
(4th Cir. 2016) (quoting Walker v. O'Brien, 216
F.3d 626, 633 (7th Cir. 2000)) (“[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.”). A federal court is prohibited
from granting relief under section 2254 unless: 1) petitioner
has exhausted his State court remedies, 2) there is no State
court process available to correct the alleged issue, or 3)
the available State court process is ineffective. 28 U.S.C.
§ 2254(b)(1). Petitioner here has failed to exhaust his
State court remedies. As noted in his petition, Petitioner
has a post-conviction relief (PCR) action pending in State
Court. ECF No. 1 at 9; Burnett v. State of South
Carolina, 2018-CP-42-00846, available at:
1 (last accessed October 30, 2018). The pending State PCR
action provides an effective means to correct the errors
Petitioner alleges in his instant petition. For this reason,
the Court may not provide section 2254 relief in this case.
because Petitioner has a pending State court proceeding where
he could raise the objections he seeks to argue here, it
would be improper for the federal court to interfere by
reviewing Petitioner's petition. Younger v.
Harris, 401 U.S. 37, 44 (1971); Cinema Blue of
Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 52-54 (4th
Cir. 1989). For the above reasons, the Court will overrule
Petitioner's objections regarding improper notification
and withholding of evidence.
also raises several objections related to State court
remedies. First, he argues he is unable to seek State court
remedies because he has been released from custody.
Petitioner further notes he “has exhausted all state
remedies except for . . . state habeas corpus.” ECF No.
20 at 5. As noted above, Petitioner has a pending State PCR
action. He is thus able to, and has, sought State remedies.
Further, Petitioner has failed to exhaust his State court
remedies as his State PCR action remains pending. For those
reasons, the Court will overrule Petitioner's objections
as to State court remedies.
Court has reviewed Petitioner's remaining arguments but
either (1) holds them to be so lacking in merit as not to
require discussion, or (2) not properly before this Court.
Therefore, the Court will overrule those objections as well.
thorough review of the Report and the record in this case
pursuant to the standard set forth above, the Court overrules
Petitioner's objections, adopts the Report, and
incorporates it herein. Therefore, it is the judgment of this
Court Petitioner's petition is DISMISSED WITHOUT
PREJUDICE and without requiring Respondent to file a
extent Petitioner requests a certificate of appealability
from this Court, that certificate is DENIED.
IS SO ORDERED.