United States District Court, D. South Carolina
Tequan L. Brown, Petitioner,
Charles Williams, Respondent.
REPORT AND RECOMMENDATION
J. GOSSETT, UNITED STATES MAGISTRATE JUDGE.
Tequan L. Brown, a self-represented state prisoner, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. This matter is before the court pursuant to 28
U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)
(D.S.C.) for a Report and Recommendation on Respondent's
motion to dismiss. (ECF No. 15.) Pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the court
advised Petitioner of the summary judgment and dismissal
procedures and the possible consequences if he failed to
respond adequately to Respondent's motion. (ECF No. 16.)
Petitioner filed a response in opposition. (ECF No. 19.)
Having carefully considered the parties' submissions, the
court finds that Respondent's motion should be granted
and the Petition be dismissed without
motion to dismiss, Respondent argues that this case should be
dismissed without prejudice because Petitioner's state
post-conviction relief (“PCR”) application is
currently pending in state circuit court, and therefore,
Petitioner has not yet exhausted his available state
remedies. The court agrees.
habeas corpus petitioner may obtain relief in federal court
only after he has exhausted his state court remedies. 28
U.S.C. § 2254(b)(1)(A); O'Sullivan v.
Boerckel, 526 U.S. 838, 844 (1999) (“Comity thus
dictates that when a prisoner alleges that his continued
confinement for a state court conviction violates federal
law, the state courts should have the first opportunity to
review this claim and provide any necessary relief.”)
(citing Rose v. Lundy, 455 U.S. 509, 515-16 (1999)).
Thus, the exhaustion doctrine requires “that state
prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete
round of the State's established appellate review
process.” O'Sullivan, 526 U.S. at 845; see also
Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997)
(“To satisfy the exhaustion requirement, a habeas
petitioner must present his claims to the state's highest
court.”), abrogated on other grounds by United
States v. Barnette, 644 F.3d 192 (4th Cir. 2011); In re
Exhaustion of State Remedies in Criminal and Post-Conviction
Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990) (holding that
“when the claim has been presented to the Court of
Appeals or the Supreme Court, and relief has been denied, the
litigant shall be deemed to have exhausted all available
state remedies.”). To exhaust his available state court
remedies, a petitioner must “fairly present to the
state court both the operative facts and the controlling
legal principles associated with each claim.”
Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir.
2004) (internal quotation marks and citation omitted).
record in this case shows Petitioner was convicted in the
Colleton County Court of General Sessions of voluntary
manslaughter, possession of a weapon during the commission of
a violent crime, and obstruction of justice, and sentenced to
an aggregate term of thirty years' imprisonment. (ECF No.
14-1 at 1, 668-69.) Petitioner's convictions and
sentences were affirmed by the South Carolina Court of
Appeals. (ECF No. 14-4.) On January 16, 2018, Petitioner
filed a PCR application in the Colleton County Court of
Common Pleas. (ECF No. 14-10.) More than one year later, on
January 25, 2019, Petitioner filed this petition for a writ
of habeas corpus. In the Petition, Petitioner claims that the
South Carolina Attorney General never responded to his PCR
application, he was never appointed counsel, and he never
received a hearing. (Pet., ECF No. 1 at 5.)
Petitioner's PCR application remains pending, Petitioner
has now been appointed counsel and the State has appeared in
the matter and filed a return. Brown v. State of South
Carolina, 2018-CP-15-00039. Thus, Petitioner has not
exhausted his state court remedies, and the Petition should
argues the court should excuse his failure to exhaust because
Respondent is at fault for the delay in his PCR proceeding.
See generally 28 U.S.C. § 2254(b); Ward v.
Freeman, 46 F.3d 1129 (4th Cir. 1995) (“A
petitioner need not present his claim to the state courts if
state court remedies are ineffective to protective his
rights. State remedies may be rendered ineffective by
inordinate delay or inaction in state proceedings.”)
(internal citations omitted) (unpublished table decision);
Hankins v. Fulcomer, 941 F.2d 246, 250 (3d Cir.
1991) (“Inordinate delay in state procedures is one
circumstance that can render state process ineffective to
protect a prisoner's rights and therefore excuse
exhaustion.”); Brooks v. Jones, 875 F.2d 30,
31 (2d Cir. 1989) (“[W]hen it is perfectly apparent . .
. that a prisoner's requests to the state court and
requests to state-appointed counsel have been to no avail, we
have held that the prisoner need not take additional steps in
the state court before he may be heard in the federal
alleges on “information and belief that there was some
delay” in the Colleton County Court of Common
Pleas's notifying Respondent that the PCR application was
filed. (ECF No. 14 at n.3.) Respondent claims that the reason
and length of the delay is unknown, but that it
“immediately worked to remedy the dormancy of that PCR
action upon its recognition.” (Id.)
court finds that the delay in processing Petitioner's PCR
application is not sufficient cause to excuse the exhaustion
requirement, especially in light of the fact that the he now
has counsel in that matter and the Respondent has now
appeared. Petitioner does not dispute Respondent's claim
that the only impediment to the application's progress
was the court's failure to provide notice to Respondent,
which is now resolved. And while Petitioner's application
has now been pending for over one year, that amount of time
is not abnormal for a state PCR action. See Miller v.
McFadden, C/A No. 1:14-483-RBH, 2015 WL 846530, at *2
(D.S.C. Feb. 26, 2015) (collecting cases that found
inordinate delays in state post-conviction actions, the
shortest delay being six years).
also argues that he will be prejudiced if the court dismisses
this matter because Respondent will judge shop for a biased
judge in state court. However, Petitioner fails to provide
any basis upon which the court could conclude that he will
not receive a fair and impartial hearing in his state PCR
Petitioner argues that if the court grants Respondent's
motion, it should only grant the motion as to the unexhausted
claims and proceed to consider the claims exhausted in
Petitioner's direct appeal. But Petitioner's argument
is based on Jones v. Bock, 549 U.S. 199 (2007),
which deals with exhaustion of non-habeas claims brought
under the Prison Litigation Reform Act (“PLRA”),
Pub. L. No. 104-134, 110 Stat. 1321 (1996). Notably, in
Jones, the Court rejected the argument that the “total
exhaustion rule” for habeas petitions should apply to
claims brought under the PLRA. Jones, 549 U.S. at 221-22.
Indeed, where a § 2254 petition includes exhausted and
unexhausted claims, the court must either dismiss the
petition or stay the petition to allow the petitioner to
exhaust his state remedies. See Rose, 455 U.S. at 522
(requiring dismissal of § 2254 habeas petitions that
include both exhausted and unexhausted claims for relief);
see also Rhines v. Weber, 544 U.S. 269, 273-79
(2005) (providing district courts should stay mixed §
2254 petitions in certain circumstances to protect the
petitioner from running afoul of the statute of limitations).
Here, as Respondent points out, Petitioner is not in danger
of violating the statute of limitations to file a § 2254
habeas petition because the limitations period is currently
tolled during the pendency of his PCR action. (ECF No. 14 at
10.) Accordingly, this Petition should be dismissed.
foregoing reasons, the court recommends Respondent's
motion to dismiss be granted (ECF No. 15) and the Petition be
dismissed without prejudice.
of Right to File Objections to Report and
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections
are made and the basis for such objections. “[I]n the
absence of a timely filed objection, a district court need
not conduct a de novo review, but instead must ‘only
satisfy itself that there is no clear error on the face of
the record in order to accept the ...