United States District Court, D. South Carolina, Spartanburg Division
Russell E. McAllister, III, Plaintiff,
Sheriff Steve Mueller and Warden Cherokee County Detention Center, Defendants.
Timothy M. Cain United States District Judge
Russell E. McAllister, III (“McAllister”), a
state pre-trial detainee proceeding pro se, filed this action
pursuant to 28 U.S.C. § 2241. (ECF No. 1). In accordance
with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02,
D.S.C., this matter was referred to a magistrate judge for
pretrial handling. Before the court is the magistrate
judge's Report and Recommendation (“Report”),
recommending that the court dismiss this action without
prejudice and without service of process. (ECF No. 10).
McAllister timely filed objections to the Report (ECF No. 15)
and also a motion to amend his petition (ECF No. 16). Because
McAllister did not attach a proposed amended petition, the
court gave McAllister an opportunity to file a proposed
amended petition for the court to review and determine if it
cured the deficiencies set out in the Report. (ECF No. 23).
McAllister subsequently filed a proposed amended petition,
which the Clerk, as directed by the court, filed as an
attachment to the motion to amend. (ECF No. 16-2).
Report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court need not conduct a de novo review when a
party makes only “general and conclusory objections
that do not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In that case, the court reviews the
Report only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
Report, the magistrate judge recommends that this action be
dismissed without prejudice because McAllister has not
exhausted his state remedies, and moreover that this court
should abstain under the Younger abstention
doctrine. (Report at 5 n.2, 5-6). In his objections,
McAllister set forth four objections.
first objection, McAllister contends that the magistrate
judge erred in stating in the background section of the
Report that McAllister was raising whether there was probable
cause to support his arrest warrant when he states he was
actually arguing the search warrant was not supported by
probable cause. (ECF No. 15 at 2). In his second objection,
McAllister notes that the magistrate judge stated in the
background section of the Report that McAllister has been
incarcerated for over 150 days without being indicted or
provided a preliminary hearing. Id. at 2. McAllister
states that this remains the case. McAllister does not really
object to the magistrate judge's recitation of facts.
Rather, he agrees with it and emphasizes he still has not
been indicted or received a preliminary hearing. Id.
at 3. In his third objection, McAllister contends that
“[t]he arrest warrant is very bias[ed], and states that
he “did commit the crime of distribution” without
any corroboration. Id. In his fourth objection,
McAllister contends that “double jeopardy is a
possibility.” Id. at 3-4. McAllister contends
that he had previously been arrested in August 2017, and that
the drugs could have been left at his girlfriend's house
from that drug offense or belonged to his girlfriend.
Id. at 4.
objections, however, are meritless. None of these objections
address the dispositive portions of the Report regarding
exhaustion. As the magistrate judge stated (Report at 3-4),
before a state prisoner can seek federal habeas relief under
§ 2241, he must first exhaust any state court remedies
that may be available. O'Sullivan v. Boerckel,
526 U.S. 838, 842 (1999) (noting state prisoner must give the
state courts an opportunity to act on his claims before he
presents those claims to a federal court in a habeas corpus
petition); Braden v. 30th Judicial Circuit Court,
410 U.S. 484, 489-92 (1973) (noting requirement for
exhaustion of “all available state remedies as a
prelude to this [§ 2241] action”); Durkin v.
Davis, 538 F.2d 1037, 1041 (4th Cir. 1976) (“Until
the State has been accorded a fair opportunity by any
available procedure to consider the issue and afford a remedy
if relief is warranted, federal courts in habeas proceedings
by state [inmates] should stay their hand.” (internal
quotation marks omitted)). Accordingly, the petition is
dismissed without prejudice.
with his objections, McAllister also filed a motion to amend
his petition. (ECF No. 16). Because he did not include a
proposed amended petition, the court gave him an opportunity
to file a proposed amended petition for the court to
consider. (ECF No. 23). McAllister filed a proposed amended
petition, which was docketed, at the court's direction,
as an attachment to the motion to amend. (ECF No.
16-2). The court has reviewed the proposed
amended petition, and finds it would not cure the
deficiencies noted in the Report. The claims remain
unexhausted. A court should deny leave to amend if amendment
would be futile, the moving party has acted in bad faith, or
amendment would be prejudicial to the opposing party.
United States v. Pittman, 209 F.3d 314, 317 (4th
Cir. 2000). Here, amendment would be futile because the
claims remain unexhausted. Accordingly, the court denies
McAllister's motion to amend.
on the foregoing, the court adopts the Report (ECF No. 10).
Therefore, this action is DISMISSED without
prejudice. Additionally, Petitioner's motion to
amend and to appoint counsel (ECF No. 16) is
IS SO ORDERED.
Younger v. Harris, 401 U.S.
37, 43-44 (1971).
McAllister also attached a motion for
the appointment of counsel to his proposed amended petition.
(ECF No. 16-3). As the court is dismissing this action, this
motion is denied as moot.
Unlike in a § 2254 or § 2255
proceeding, it is not necessary for a petitioner to obtain a
certificate of appealability to appeal an order dismissing a
§ 2241 petition. Sanders v. O'Brien, 376