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Johnson v. Williams

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

June 21, 2019

Mykel Johnson, Petitioner,
v.
Randolph Williams, Warden of Lieber, Respondent.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald, United States Magistrate Judge.

         The petitioner, proceeding pro se and in forma pauperis, brings this action pursuant to 28 U.S.C. § 2254 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons set forth below, it is recommended that the petitioner's § 2254 petition be summarily dismissed.

         BACKGROUND

         The petitioner seeks habeas relief regarding two 2012 convictions for attempted murder, which resulted in concurrent sentences of 15 years (doc. 1 at 1). His sentence was affirmed by the South Carolina Court of Appeals (id. at 2).

         The petitioner alleges that he filed a post-conviction relief (“PCR”) action regarding his convictions in 2014 (id. at 3). The court takes judicial notice of the petitioner's PCR proceeding in the Beaufort County Court of Common Pleas, along with its corresponding appeal.[1] See Johnson v. South Carolina, C/A No. 2014-CP-07-01759, Beaufort County Public Index, https://publicindex.sccourts.org/Beaufort/PublicIndex/ PISearch.aspx (enter the petitioner's name and 2014-CP-07-01759) (last visited June 20, 2019); see also Johnson v. State of South Carolina, C/A No. 2016-001684 (S.C. Ct. App.) (last visited June 20, 2019). The PCR action asserted ineffective assistance of counsel, but it was denied on June 20, 2016 (doc. 1 at 3). The petitioner appealed the denial of his PCR action on August 10, 2016 (id. at 6; doc. 1-1 at 40). The South Carolina Supreme Court transferred the petitioner's PCR appeal to the Court of Appeals on October 30, 2017, and on November 1, 2018, the Court of Appeals granted the petition for certiorari review of the petitioner's PCR appeal (doc. 1-1 at 40). The petitioner alleges that upon filing the instant matter, the appeal is currently pending (docs. 1 at 6, 12; 1-1 at 40). Nevertheless, the petitioner asserts that habeas relief is appropriate because the state appellate court has “inordinately delayed” ruling on his appeal (doc. 1 at 7).

         In the present petition, the petitioner asserts ineffective assistance of counsel, a due process violation, and an equal process violation as his grounds for relief (see generally doc. 1). For his relief, the petitioner seeks dismissal of all charges and that the action convert to a § 1983 suit for damages related to the petitioner's due process and equal protection claims (id. at 15).

         STANDARD OF REVIEW

         The undersigned has reviewed the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

         DISCUSSION

         As noted above, the petitioner filed this case pursuant to § 2254, seeking dismissal of his charges and conversion of the petition to one for damages pursuant to § 1983 due to constitutional rights violations. The instant matter, however, is subject to summary dismissal because it is premature and because conversion of the action to one for § 1983 is inappropriate.

         Exhaustion Requirement

         The petitioner's habeas petition is subject to summary dismissal because he has failed to exhaust his state court remedies. Title 28, United States Code, Section 2254(b) provides that “[a]n application for writ of habeas corpus . . . shall not be granted unless it appears that [ ] the applicant has exhausted the remedies available in the courts of the State; or there is an absence of available State corrective process; or circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, and (2) if the direct appeal turns out to be unsuccessful, by filing an application for PCR. “The habeas statute generally requires a state prisoner to exhaust state remedies before filing a habeas petition in federal court.” Woodford v. Ngo, 548 U.S. 81, 92 (2006). Here, at the time of the filing of the instant petition, as alleged by the petitioner, his PCR appeal was pending before the South Carolina Court of Appeals (docs. 1 at 6, 12; 1-1 at 40).[2] As such, he has not exhausted his state court remedies, as the state appellate court may still provide the remedy he seeks.

         The petitioner's petition is not saved by his allegations of inordinate delay by the state of South Carolina in processing his PCR and its appeal. While a truly inordinate and unjustified delay in the state court process may excuse a petitioner from the statutory exhaustion requirement, the petitioner has failed to show that such a delay is present here. As noted above, the petitioner indicates that during the two and a half years his PCR appeal has been pending the South Carolina Supreme Court has transferred the case to the Court of Appeals (October 30, 2017) and the Court of Appeals has granted a petition for certiorari review of the PCR appeal (November 1, 2018) (doc. 1-1 at 40). Further, a review of the filings in the petitioner's PCR appeal reveals that since certiorari was granted in 2018, there has been briefing by both the petitioner and the state/respondent, and that the final brief was submitted on April 17, 2019. See Johnson v. State of South Carolina, C/A No. 2016-001684 (S.C. Ct. App.) (last visited June 20, 2019). Thus, because it appears that the petitioner's state PCR application (and appeal) are ...


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