United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOW MERCHANT UNITED STATES MAGISTRATE JUDGE.
Petitioner, Carwin Tyrone Pettis, Jr., proceeding pro se,
brings this action pursuant to 28 U.S.C. § 2254 for
habeas relief. He is an inmate at the Ridgeland Correctional
Institution, part of the South Carolina Department of
established local procedure in this judicial district, a
careful review has been made of the pro se petition filed in
the above-captioned case pursuant to the procedural
provisions of the Anti-Terrorism and Effective Death Penalty
Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (AEDPA), 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): and
Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Pro se petitions are also held to a less stringent standard
than those drafted by attorneys, and a federal district court
is charged with liberally construing a petition filed by a
pro se litigant to allow for the development of a potentially
meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9
(1980) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)); Gordon v. Leeke, 574 F.2d 1147.1151 (4th
Cir. 19781 (citing Rice v. Olson, 324 U.S.
786.791-92 f 1945); Holiday v. Johnston, 313 U.S.
342, 350 (1941)).
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 of the Rules
Governing Section 2254 Cases in the United States District
Courts. 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 currently cognizable in
a federal district court. See Weller v. Dep't of Soc.
Servs., 901 F.2d387, 391 (4th Cir. 1990). Such is the
pleaded guilty and was sentenced on March 20, 2014 to two
concurrent ten-year terms of imprisonment for voluntary
manslaughter (2011-GS-40-04380) and attempted armed robbery
(2011-GS-40-04381). He did not file a direct appeal
(Petitioner claims that he requested that his attorney file a
direct appeal, but none was ever filed). Petitioner filed an
application for post-conviction relief (PCR) on April 30,
2014, and after a hearing at which Petitioner was present and
represented by counsel, the PCR was dismissed on May 22,
2015. Petitioner states that he did not file an appeal of his
PCR and records from Richland County do not indicate that an
appeal was taken after the PCR action was dismissed. See
Petition, ECF No. 1 at 9, Richland County Fifth Judicial
Circuit Public Index,
§ 2254 Petition should be dismissed because it is clear
from the face of the Petition that Petitioner has not yet
fully exhausted his state court remedies. With respect to
Petitioner's convictions and sentences, his sole federal
remedies are a writ of habeas corpus under either 28 U.S.C.
§ 2254 and possibly, but much less commonly, a writ of
habeas corpus under 28 U.S.C. § 2241, which remedies can
be sought only after the petitioner has exhausted his state
court remedies. See 28 U.S.C. § 2254(b). The exhaustion
requirement is "grounded in principles of comity; in a
federal system, the States should have the first opportunity
to address and correct alleged violations of state
prisoner's federal rights." Coleman v.
Thompson, 501 U.S. 722, 731 (1991); Lawson v.
Dixon, 3 F.3d 743, 749-50 n. 4 (4th Cir. 1993). In
Matthews v. Evatt, 105 F.3d 907 (4th Cir. 1997), the
Fourth Circuit found that "a federal habeas court may
consider only those issues which have been 'fairly
presented' to the state courts.... To satisfy the
exhaustion requirement, a habeas petitioner must fairly
present his claim to the state's highest court. The
burden of proving that a claim has been exhausted lies with
the petitioner." Id. at 911 (citations
omitted), abrogated on other grounds by United States v.
Barnette, 644 F.3d 192 (4th Cir. 2011)).
exhaust state court remedies in South Carolina, a direct
appeal may be pursued. See State v. Northcutt, 641
S.E.2d 873 (S.C. 2007). If a direct appeal is filed and is
ultimately unsuccessful (or if no direct appeal is filed), a
petitioner may file an application for PCR in a court of
common pleas. See S.C. Code Ann § 17-27-10 et seg.
(1976); see also Miller v. Harvey, 566 F.2d 879,
880-81 (4th Cir. 1977)[noting that South Carolina's
Uniform Post-Conviction Procedure Act is a viable state court
remedy]. If a South Carolina prisoner's PCR application
is denied or dismissed by a court of common pleas, the
petitioner can then file a request for writ of certiorari
with a South Carolina appellate court. See S.C. Code Ann
§ 17-27-100 (1976); Knight v. State, 325 S.E.2d
535 (S.C. 1985). If a petitioner's PCR application is
denied by a court of common pleas, the petitioner must seek
appellate review in the state courts or federal collateral
review of the grounds raised in his PCR application may be
barred by a procedural default. See Longworth v.
Ozmint, 377 F.3d 437, 447-18 (4th Cir. 2004)[finding
that exhaustion requires state prisoners to complete at least
one complete round of the state's established appellate
review process by presenting the ground for relief in a
face-up and square fashion].
because it is clear that Petitioner has a potentially viable
state court remedy (an appeal to the South Carolina Court of
Appeals),  this Court should not keep this case on
its docket while Petitioner is exhausting his state remedies.
See Galloway v. Stephenson, 510 F.Supp. 840, 846
(M.D. N.C. 1981) ["When state court remedies have not
been exhausted, absent special circumstances, a federal
habeas court may not retain the case on its docket, pending
exhaustion, but should dismiss the petition."].
on the foregoing, it is recommended that the instant Petition
for a Writ of Habeas Corpus be summarily dismissed without
prejudice and without requiring Respondent to file a return.
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 recommendation.'"
Diamond v. Colonial Life & Ace. Ins. Co., 416
F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P.
6(a), (d). Filing by mail pursuant to Federal ...