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Green v. Wilson

United States District Court, D. South Carolina, Florence Division

February 4, 2019

Gregory Green, Plaintiff,
v.
Alan Wilson, Attorney General of South Carolina, Defendant.

          ORDER

          R. Bryan Harwell, United States District Judge.

         This matter is before the Court for consideration of Plaintiff's objections to the Report and Recommendation (“R & R”) of United States Magistrate Judge Paige J. Gossett, who recommends summarily dismissing Plaintiff's pro se complaint with prejudice.[1] See ECF Nos. 8 & 10.

         Standard of Review

         The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge's recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a de novo review of those portions of the R & R to which specific objections are made, and it 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. § 636(b)(1); Fed.R.Civ.P. 72(b).

         The Court must engage in a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate [Judge]'s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge's recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).

         Discussion [2]

         Plaintiff, a state prisoner proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983 against the Attorney General of South Carolina alleging South Carolina Appellate Court Rule 243 is unconstitutional. See ECF No. 1. Specifically, Plaintiff contends the intermediate state appellate court-the South Carolina Court of Appeals-was not “obligated “ to hear his post-conviction relief (“PCR”) appeal but should have been. Id. at pp. 5-7. The Magistrate Judge recommends summarily dismissing Plaintiff's complaint with prejudice. See R & R at pp. 1, 4. Plaintiff has filed objections to the R & R. See ECF No. 10.

         “Federal courts may upset a State's postconviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided.” Dist. Att'y's Office for Third Jud. Dist. v. Osborne, 557 U.S. 52, 69 (2009); see also LaMar v. Ebert, No. 18-6417, 2018 WL 6266759, at *4 (4th Cir. 2018) (articulating the Osborne standard in a § 1983 action).[3] The South Carolina Uniform Post-Conviction Relief Act provides that a final judgment in a PCR action “may be reviewed by a writ of certiorari as provided by the South Carolina Appellate Court Rules.” S.C. Code Ann. § 17-27-100. South Carolina Appellate Court Rule 243-the rule challenged by Plaintiff-provides that “[a] final decision entered under the Post-Conviction Relief Act shall be reviewed by the Supreme Court upon petition of either party for a writ of certiorari, according to the procedure set forth in this Rule.” Rule 243(a), SCACR (emphasis added). However, Rule 243 provides that “[t]he Supreme Court may transfer a case filed under this rule to the Court of Appeals, ” and if the case is in fact transferred to and decided by the S.C. Court of Appeals, the Supreme Court can review that decision. Rule 243(1), SCACR (emphasis added); see, e.g., Buckson v. State, 815 S.E.2d 436, 438 (S.C. 2018). However, Rule 243 makes clear that PCR appeals go directly to the S.C. Supreme Court, not the S.C. Court of Appeals (which will decide a PCR appeal only if it is transferred there).

         As the Magistrate Judge correctly observes, Plaintiff has not provided any authority supporting his contention that an intermediate state appellate court (like the S.C. Court of Appeals) must hear a PCR appeal before a superior state appellate court does.[4] Moreover, he has not shown Rule 243 is “fundamentally inadequate to vindicate the substantive rights provided.” Osborne, 557 U.S. at 69. Plaintiff has failed to state a plausible claim for relief, and therefore the Court will dismiss this case with prejudice.[5]

         Conclusion

         For the foregoing reasons, the Court ADOPTS the R & R [ECF No. 8] and DISMISSES this action with prejudice and without issuance and service of process.

         IT IS SO ORDERED.

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