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Perry v. Lewis

United States District Court, D. South Carolina

December 13, 2019

Tyrone Perry, #307793, Petitioner,
v.
Scott Lewis, Respondent.

          ORDER AND NOTICE

          SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE

         Tyrone Perry (“Petitioner”), proceeding pro se and in forma pauperis, filed this petition pursuant to 28 U.S.C. § 2254 against Perry Correctional Institution's Warden, Scott Lewis (“Respondent”). 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.

         I. Factual and Procedural Background

         Petitioner is a state prisoner incarcerated at Perry Correctional Institution. [ECF No. 9 at 1]. He brings this petition for a writ of habeas corpus challenging a September 20, 2018 prison disciplinary proceeding whereby he was convicted of fighting without a weapon. Id.

         Petitioner alleges he is entitled to additional due process safeguards because he is a mentally ill inmate. Id. at 5. He specifically maintains he was not seen by a qualified mental health professional within three days of the issuance of the incident report in the disciplinary proceeding. Id. He claims South Carolina Department of Corrections (“SCDC”) officials engaged in fraud and obtained a conviction through violations of policy, statute, and the Constitution. Id. at 5.

         Petitioner further maintains his case was not tried by an impartial hearing officer. Id. at 7. He claims the hearing officer refused to call witnesses on his behalf without explanation and concluded without sufficient evidence that he provoked the incident. Id. He maintains the other individual assaulted him. Id. at 8. He claims he was discriminated against based on his race. Id. at 10.

         Petitioner claims he filed an institutional grievance alleging violations of due process and equal protection and appeals in the South Carolina Administrative Law Court, the South Carolina Court of Appeals, and the South Carolina Supreme Court that were all dismissed. Id. at 2-5. He alleges he was denied the ability to participate in appellate proceedings because of his indigent status. Id. at 5, 7, 9, 10.

         Petitioner states he had no prior violent disciplinary infractions prior to the conviction for fighting without a weapon.[1] Id. at 8. He requests the court “vacate and overturn this violent charge of fighting without a weapon.” Id. at 15.

         II. Discussion

         A. Standard of Review

         Under established local procedure in this judicial district, this petition has been carefully reviewed pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints 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 complaint 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 complaint, 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 if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean 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. Court Lacks Jurisdiction Under 28 U.S.C. § 2254

         Pursuant to 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in ...


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