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Kilgore v. Cohn

United States District Court, D. South Carolina

October 23, 2019

Troy Lee Kilgore, Petitioner,
v.
Lavern Cohn, Warden, Respondent.

          REPORT AND RECOMMENDATION

          KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE

         Troy Lee Kilgore (“Petitioner”), proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.[1] Pursuant to the provisions of 28 U.S.C. § 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.

         I. Factual and Procedural Background

         Petitioner 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.

         ECF No. 1-1 at 4 (errors in original).

         II. Discussion

         A. Standard of Review

         Under 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, [2] 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).

         B. Analysis

         1. Failure to Exhaust

         A state 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).

         Petitioner 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.[3] 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 petition.”).

         2. Young ...


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