United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE.
Frost (“Petitioner”), proceeding pro se and in
forma pauperis, brings this habeas corpus action purportedly
under 28 U.S.C. § 2254. Petitioner is a pretrial detainee
and is currently incarcerated at the Charleston County
Detention Center. Pursuant to the provisions of 28 U.S.C. Â§
636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., the
undersigned Magistrate Judge is authorized to review such
petitions for relief and submit findings and recommendations
to the District Judge. For the reasons that follow, the
Petition is subject to summary dismissal.
commenced the instant federal habeas action to challenge his
incarceration at the Charleston County Detention Center by
filing a single-page, handwritten memorandum, which was
construed as a habeas petition pursuant to 28 U.S.C. §
2254, along with a letter in support of his petition. [Docs.
1; 1-1.] By Order dated July 22, 2019, Petitioner was
instructed to file with the Court a habeas petition on the
standard court form. [Doc. 5.] Thereafter, Petitioner filed
the proper court form [Docs. 1-4; 1-7], along with additional
attachments [Doc. 1-5], which were attached to his original
filing. The Court construes the original filing along with
the filing on the standard court form [Docs. 1; 1-4; 1-7]
together as the Petition in this habeas action, and the Court
has carefully reviewed each of the documents [Docs. 1-1; 1-5]
submitted by Petitioner in support of his Petition. Further,
the Court takes judicial notice of the records in
Petitioner's pending state criminal case. See Philips
v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th
Cir. 2009) (explaining courts “may properly take
judicial notice of matters of public record”);
Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239
(4th Cir. 1989) (“We note that ‘the most frequent
use of judicial notice is in noticing the content of court
noted, Petitioner purports to bring this action under 28
U.S.C. § 2254. [Doc. 1.] He makes the following
allegations. Petitioner contends that he was served with an
arrest warrant (warrant No. 2018A1020900205) for shoplifting
on January 14, 2019. [Docs. 1-1 at 1; 1-4 at 2.] Petitioner
contends that the warrant was dated October 20, 2018, and
stated that the crime was committed on October 20, 2018.
[Docs. 1-1 at 1; 1-4 at 2.] However, Petitioner contends, the
alleged crime actually happened on October 28, 2018, eight
days after the warrant was issued. [Docs. 1-1 at 1; 1-4 at
2.] According to Petitioner, an affidavit in support of the
warrant (affidavit No. 2018-0009777) stated that the alleged
crime happened on October 28, 2018. [Docs. 1-1 at 1; 1-4 at
Petitioner contends that, based on this information, he was
falsely arrested. [Doc. 1-4 at 5.] Petitioner also contends
that he has been incarcerated for more than six months
without any results and that he has not been to court yet.
[Docs. 1-1 at 1; 1-4 at 2.] For his relief, Petitioner seeks
immediate dismissal of the charges and monetary compensation
in the amount of $250, 000 for pain and suffering. [Docs. 1-1
at 1; 1-7 at 8.]
has attached to his Petition a copy of the affidavit for
arrest warrant, an incident report, and the arrest warrant.
[Docs. 1-2; 1-5.] The affidavit for arrest warrant is dated
November 14, 2018, and states, in relevant part, as follows:
[Petitioner] did within the town of Mount Pleasant, County of
Charleston, State of South Caorlina, on or about the dates of
October 20th 2018, violate the criminal laws of
the State of South Carolina, namely, Shoplifting >$2000 at
[a Lowe's store] in violation of Section, 16-13-110 of
the South Carolina Code of Laws . . . .
On October 28, 2018 [Petitioner] did enter the Lowe's
store . . . and was caught on video surveillance taking eight
Dyson vacuum cleaners and throwing them over a security fence
to a car that was waiting. The vacuums were loaded into the
vehicle and the driver drove off while [Petitioner] exited
the store. . . .
[Doc. 1-5 at 2 (emphasis in original).] The affidavit was
signed by the affiant and the magistrate judge and dated
November 14, 2018. [Id.] The arrest warrant was also
signed by the affiant and the magistrate judge and dated
November 14, 2018. [Id. at 1.] Like the affidavit,
the arrest warrant states that probable cause existed to
support the charge that Petitioner committed the crime of
shoplifting on October 20, 2018. [Id.] Finally,
according to the incident report, dated October 30, 2018, an
officer was dispatched to the Lowe's store on October 30,
2018, where the store's Loss Prevention Manager stated
that two men entered the store on October 28, 2018, and took
eight Dyson vacuum cleaners. [Doc. 1-2 at 2.] Petitioner
appears to argue that, because the affidavit and arrest
warrant contain conflicting dates concerning when the alleged
shoplifting occurred, using both the dates of October 20,
2018, and October 28, 2018, the warrant is defective and he
was therefore falsely arrested.
established local procedure in this judicial district, a
careful review has been made of the pro se petition filed in
the above-captioned case. The review was conducted pursuant
to the procedural provisions of 28 U.S.C. § 1915, the
Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”) of 1996, Pub. L. 104-132, 110 Stat.
1214, and in light of the following precedents: Denton v.
Hernandez, 504 U.S. 25 (1992); Neitzke v.
Williams, 490 U.S. 319, 324-25 (1989); Haines v.
Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md.
House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd
v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Further, this Court is charged with screening
Petitioner's lawsuit to determine if “it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
court.” Rule 4, Rules Governing Section 2254 Cases in
the U.S. District Courts (2012). Pursuant to this rule, a
district court is “authorized to dismiss summarily any
habeas petition that appears legally insufficient on its
face.” McFarland v. Scott, 512 U.S. 849, 856
Petitioner filed this action pursuant to 28 U.S.C. §
1915, the in forma pauperis statute. This statute authorizes
the district court to dismiss a case if it is satisfied that
the action “fails to state a claim on which relief may
be granted, ” is “frivolous or malicious, ”
or “seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). Petitioner appears to be a prisoner under the
definition in 28 U.S.C. § 1915A(c), and “seeks
redress from a governmental entity or officer or employee of
a governmental entity.” 28 U.S.C. § 1915A(a).
Thus, even if Petitioner had prepaid the full filing fee,
this Court would still be charged with screening his lawsuit
to identify cognizable claims or to dismiss the Petition if
(1) it is frivolous, malicious, or fails to state a claim
upon which relief may be granted or (2) seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
Petitioner is a pro se litigant, his 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, 93-94 (2007) (per curiam).
However, even under this less stringent standard, the
Petition is subject to summary dismissal. The requirement of
liberal construction does not mean that the court can ignore
a clear failure in the pleading to allege facts which set