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Cason v. Sterling

United States District Court, D. South Carolina

October 2, 2019

Garey Emil Cason, Jr., # 327859, Petitioner,
v.
Director Brian Sterling and Warden Thomas Williams, Respondents.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE

         Garey Emil Cason, Jr. (“Petitioner”), proceeding pro se and in forma pauperis, filed this action seeking habeas corpus relief under 28 U.S.C. § 2254.[1]Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends the district judge dismiss the petition without prejudice and without requiring Respondents to file a return.

         I. Factual and Procedural Background

         Petitioner is a state prisoner housed at McCormick Correctional Institution. [ECF No. 1 at 2]. He claims Director Brian Sterling and Warden Thomas Williams (collectively “Respondents”) have illegally imprisoned him. Id. at 4.

         Petitioner pled guilty on June 18, 2015, and was committed to the custody of the South Carolina Department of Corrections. Id. at 5, 9. He claims his Fifth and Fourteenth Amendment rights were violated because he was convicted without having been indicted by a grand jury. Id. at 6-7. Petitioner maintains prosecutors violated provisions of the South Carolina Constitution and his Sixth Amendment rights because his case was not disposed of within 180 days of the date of his arrest. Id. at 7. He claims the trial court lacked jurisdiction to entertain his case because no indictment or warrant was filed with the Clerk of Court prior to his conviction. Id. at 8. He failed to indicate whether he filed an appeal or action for postconviction relief.

         Petitioner requests the court provide the following relief: vacate his judgment, conviction, and sentence; order he be released immediately; order his record be expunged; and compensate him for physical and mental damage caused by his illegal incarceration. Id. at 14.

         On September 6, 2019, the court issued an order directing Petitioner to (1) complete, sign, and return the Petition for Writ of Habeas Corpus form and (2) submit a document to the court providing facts concerning the timeliness of his petition[2] [ECF No. 7]. The order alerted Petitioner his failure to comply by September 27, 2019, could subject his case to summary dismissal. [ECF No. 7 at 2]. Petitioner has failed to respond to the court's order.

         II. Discussion

         It is well established that a district court has authority to dismiss a case for failure to prosecute. “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Fed.R.Civ.P. 41(b). Id. at 630. Based on Petitioner's failure to respond to the court's September 6, 2019 order, the undersigned concludes he does not intend to pursue the above-captioned matter. Accordingly, the undersigned recommends this petition be dismissed without prejudice for failure to prosecute pursuant to Fed.R.Civ.P. 41.

         III. Conclusion and Recommendation

         For the foregoing reasons, the undersigned recommends the district judge dismiss the petition without prejudice and without requiring Respondents to file a return. However, if Petitioner notifies the court within the time set for filing objections to this Report and Recommendation that he wishes to continue with this case and complies with the court's September 6, 2019 order, the Clerk is directed to vacate this Report and Recommendation and return the file to the undersigned for further handling. If, however, no objections are filed, the Clerk shall forward this Report and Recommendation to the district judge for disposition.

         IT IS SO RECOMMENDED.

         The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”

         Notice of Right to File Objections to Report ...


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