United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Lee Kilgore (“Petitioner”), proceeding pro se,
filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. 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 is authorized to review such petitions for
relief and submit findings and recommendations to the
district judge. For the reasons that follow, the undersigned
recommends that the district judge dismiss the petition in
this case without prejudice and without requiring the
Respondent to file an answer.
Factual and Procedural Background
was convicted of murder and assault and battery. ECF No. 1-1
at 1. He filed this petition alleging that the state court
improperly denied his request for bond pending the resolution
of his post-conviction relief proceedings. ECF No. 1 at 2, 6.
Petitioner seeks to be released on bond. Id. at 7.
The state court denied Petitioner's “Motion for
Supercede Bond, Pursuant to S.C. Code Ann. Sec.
18-1-90” on July 23, 2019, stating:
The Motion is denied because the Section cited by Applicant
does not apply to a PCR and states that ‘Bail may be
allowed to the defendant in all in cases in which the appeal
is form the trial, conviction or sentence for a criminal
offense.' The current matter is a civil action for Post
Conviction relief and does not involve an Appeal. Therefore,
Applicant's Motion is denied and no hearing in necessary
for the Court to make a determination in this matter.
1-1 at 4 (errors in original).
Standard of Review
established local procedure in this judicial district, a
careful review has been made of this petition pursuant to the
Rules Governing Section 2254 Proceedings for the United
States District Court,  the Anti-Terrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, and
other habeas corpus statutes. Pro se pleadings are held to a
less stringent standard than those drafted by attorneys.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978). A federal court is charged with liberally construing a
pleading filed by a pro se litigant to allow the development
of a potentially meritorious case. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se
pleading, the plaintiff's allegations are assumed to be
true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir.
1975). The mandated liberal construction afforded to pro se
pleadings means that if the court can reasonably read the
pleadings to state a valid claim on which a pro se party
could prevail, it should do so. Nevertheless, the requirement
of liberal construction does not mean that the court can
ignore a clear failure in the pleading to allege facts that
set forth a claim currently cognizable in a federal district
court. Weller v. Dep't of Soc. Servs., 901 F.2d
387, 390- 91 (4th Cir. 1990).
Failure to Exhaust
prisoner seeking habeas relief through 28 U.S.C. § 2241
or § 2254 must first exhaust his state court remedies.
Although the exhaustion provisions codified under § 2254
are not contained in § 2241, the exhaustion requirement
“applies to all habeas corpus actions.” Fain
v. Duff, 488 F.2d 218, 223 (5th Cir. 1973); see
Braden v. 30th Judicial Court of Ky., 410 U.S. 484, 490
(1973) (applying exhaustion requirement in 28 U.S.C. §
2241 habeas corpus proceeding). This doctrine, based on
principles of comity, requires that, before a federal court
will review allegations of constitutional violations by a
state prisoner, those allegations must first be presented to
the state's highest court for consideration. See
Picard v. Connor, 404 U.S. 270, 276 (1976).
has not shown he has exhausted his state law remedies with
respect to his habeas claim. In fact, Petitioner admits he
did not appeal the denial of his motion for bond.
See ECF No. 1 at 2. Because Petitioner has not
exhausted his state court remedies, this Petition should be
summarily dismissed. See Galloway v. Stephens, 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