United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES, UNITED STATES MAGISTRATE JUDGE
Emil Cason, Jr. (“Petitioner”), proceeding pro se
and in forma pauperis, filed this action seeking habeas
corpus relief under 28 U.S.C. § 2254.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.
Factual and Procedural Background
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.
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
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.
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 [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.
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.
Conclusion and Recommendation
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.
parties are directed to note the important information in the
attached “Notice of Right to File Objections to Report
of Right to File Objections to Report ...