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Pettis v. Warden of Ridgeland Correctional Institution

United States District Court, D. South Carolina

October 16, 2019

Carwin Tyrone Pettis, Jr., Petitioner,
Warden of Ridgeland Correctional Institution, Respondent.



         The 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 Corrections (SCDC).

         Under 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)).

         Nonetheless, 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 case here.


         Petitioner 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, licIndex/CaseDetails.aspx?County=40&CourtAgency=40002&Casenum=2014CP4002767&Case Type=V&HKey=1091031161031097470437948886811411898115861207543118988871105121 516973111708185491169988885410611110999.[1]

         This § 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).[2] 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)).[3]

         To 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].

         Therefore, because it is clear that Petitioner has a potentially viable state court remedy (an appeal to the South Carolina Court of Appeals), [4] 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."].


         Based 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.

         Notice of Right to File Objections to Report and Recommendation

         The 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 committee's note).

         Specific 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 ...

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