Green v. Dunlap
ORDER adopting the 21 Report and Recommendation, granting the Respondent's 10 motion for summary judgment, dismissing the action without prejudice for failure to exhaust state remedies, and denying a certificate of appealability. Signed by Honorable R. Bryan Harwell on 1/30/2017. (bgoo)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
David Dunlap, Warden,
Civil Action No.: 0:16-cv-00846-RBH
Petitioner Gregory Green, a state prisoner proceeding pro se, initiated this action by filing a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See ECF No.1 1. The matter is now
before the Court for review of the Report and Recommendation (R & R) of United States Magistrate
Judge Paige J. Gossett.2 See R & R, ECF No. 21. The Magistrate Judge recommends granting
Respondent’s motion for summary judgment and dismissing Petitioner’s § 2254 petition without
prejudice for failure to exhaust his state remedies. R & R at 1, 8. Petitioner has filed objections to the
R & R. See ECF Nos. 23 & 24.
Standard of Review3
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it may accept,
“ECF No.” stands for “electronic court filing number.”
This matter was automatically referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and
Local Rule 73.02(B)(2)(c) for the District of South Carolina.
The Magistrate Judge’s R & R sets forth the correct legal standards for summary judgment and review of
pro se filings. See R & R at 4-9.
reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when
a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199-200 (4th Cir. 1983).
The State of South Carolina indicted Petitioner for trafficking in heroin, second offense, in
November 2013. See ECF No. 9-1. Petitioner pled guilty to trafficking in heroin, first offense, in May
2014, and did not file a direct appeal. See ECF No. 9-2. Petitioner filed a state application for postconviction relief (PCR) in November 2014, and the state PCR court held an evidentiary hearing in
February 2016. See ECF Nos. 9-4 & 13-1. The PCR court denied the application by issuing a Form
4 order5 on February 11, 2016, and a formal order on March 11, 2016. See ECF Nos. 9-7 & 9-8.
The R & R thoroughly summarizes the background of this case, with applicable dates and citations to the
record. See R & R at 1-3.
A Form 4 order is a summary order that South Carolina circuit courts use to enter judgment in a civil case.
The circuit court may specify that a more formal order will be filed. See generally Cheap-O’s Truck Stop, Inc. v.
Cloyd, 350 S.C. 596, 604-05, 567 S.E.2d 514, 518 (Ct. App. 2002) (discussing Form 4 orders).
As explained in more detail below, PCR counsel appealed the Form 4 order, but this appeal was dismissed
without prejudice. See ECF Nos. 9-9 & 9-10.
Petitioner’s PCR counsel filed a notice of appeal from the formal order on March 25, 2016. See ECF
No. 9-12. Petitioner’s PCR appeal is currently pending in the South Carolina Supreme Court.6 See ECF
On March 14, 2016,7 Petitioner filed the instant petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. See ECF No. 1. Respondent answered the petition by filing a return and a motion
for summary judgment. See ECF Nos. 9 & 10. The Magistrate Judge issued an R & R recommending
that the Court grant Respondent’s motion for summary judgment and dismiss Petitioner’s § 2254
petition without prejudice for failure to exhaust his state remedies. R & R at 1, 8. Petitioner filed
timely objections8 to the R & R, and Respondent filed a timely reply to Petitioner’s objections.9 See
ECF Nos. 23, 24, & 25.
The Magistrate Judge recommends dismissing Petitioner’s § 2254 federal habeas petition
without prejudice because he has failed to exhaust his state remedies. R & R at 1, 8. The Magistrate
Judge’s R & R sets forth the correct law pertaining to the exhaustion requirements of 28 U.S.C. § 2254,
and the Court adopts and incorporates that law by reference without repeating it here. See R & R at 5-8.
See Green v. State, No. 2016-000658 (S.C. Sup. Ct. docketed Mar. 25, 2016), docket available at
http://ctrack.sccourts.org/public/caseView.do?csIID=61794 (last visited January 24, 2017). See generally Colonial
Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“[F]ederal courts, in appropriate circumstances, may take
notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have
a direct relation to matters at issue.”).
Filing date under Houston v. Lack, 487 U.S. 266 (1988) (stating a prisoner’s pleading is deemed filed
at the moment of delivery to prison authorities for forwarding to district court).
Petitioner filed supplemental objections within the time for filing objections. ECF No. 24.
Petitioner has also filed a copy of a petition for a writ of mandamus that he filed in the United States Court
of Appeals for the Fourth Circuit on November 18, 2016. See ECF No. 37. See also In re Green, No. 16-2302 (4th
Cir. docketed Nov. 9, 2016).
Petitioner’s objections center on an order that the South Carolina Supreme Court issued on
March 10, 2016. See Pet.’s Objs. [ECF No. 23]; Pet.’s Supp. Objs. [ECF No. 24]. As the Magistrate
Judge explains in the R & R, Petitioner’s PCR counsel originally filed a notice of appeal from the Form
4 order that the PCR court issued on February 11, 2016. On March 10, 2016, the South Carolina
Supreme Court issued an order dismissing the appeal without prejudice, vacating the Form 4 order
because it did not comply with South Carolina law (specifically S.C. Code Ann. § 17-27-80, which
requires the PCR court to make specific findings of fact and conclusions of law), and remanding the
matter to the circuit court with instructions to enter a written order complying with § 17-27-80
(hereinafter, “the March 10, 2016 order”). Respondent filed a copy of the March 10, 2016 order as an
attachment to its return to Petitioner’s § 2254 petition. See ECF No. 9-10. Petitioner has attached a
copy of the March 10, 2016 order to his objections. See ECF No. 23-1.
Petitioner first asserts the R & R is “completely devoid of any reference to the S.C. Supreme
Court Order dated March 10, 2016.” Pet.’s Objs. at 2. This assertion is incorrect. The Magistrate
Judge refers to the March 10, 2016 order in a footnote on page two of the R & R. See R & R at 2 n.1
(citing ECF No. 9-10).10
Next, Petitioner challenges the Magistrate Judge’s substantive finding that he has not exhausted
his state PCR remedies. Pet.’s Objs. at 3-4. He argues the March 10, 2016 order constitutes “‘one
complete round of the State’s established judicial post-conviction appellate review process’” pursuant
to the United States Supreme Court’s decision in O’Sullivan v. Boerckel, 526 U.S. 838 (1999). Pet.’s
Objs. at 3 (quoting O’Sullivan, 526 U.S. at 845). He contends that by issuing the March 10, 2016 order,
It is possible that Petitioner does not understand “ECF No. 9-10” (the electronic court filing number) refers
to the March 10, 2016 order.
the South Carolina Supreme Court “could not have decided to vacate the [Form 4] PCR order without
implicitly ruling on the merits of the claim.” Id. at 4. In short, Petitioner argues the March 10, 2016
order “was a ruling on the merits,” see Pet.’s Supp. Objs. at 2, and he “asserts that he has exhausted his
state court remedies by presenting his federal claims to the state’s highest court pursuant to O’Sullivan.”
The Magistrate Judge determined Petitioner misinterpreted O’Sullivan, see R & R at 7, and the
Court agrees. A plain reading of O’Sullivan and related cases addressing the exhaustion doctrine
indicates a state prisoner seeking relief under 28 U.S.C. § 2254 “must exhaust his remedies in state
court” and must “give the state courts a full and fair opportunity to resolve federal constitutional claims
before those claims are presented to the federal courts.” O’Sullivan, 526 U.S. at 842, 845 (emphasis
added); see Duncan v. Walker, 533 U.S. 167, 178-79 (2001) (“The exhaustion requirement of § 2254(b)
ensures that the state courts have the opportunity fully to consider federal-law challenges to a state
custodial judgment before the lower federal courts may entertain a collateral attack upon that
judgment.”); Hedrick v. True, 443 F.3d 342, 369 (4th Cir. 2006) (“The doctrine of exhaustion is
designed to give state courts a ‘full and fair opportunity to resolve federal constitutional claims before
those claims are presented to the federal courts.’” (quoting O’Sullivan, 526 U.S. at 845)).
In Petitioner’s case, the South Carolina Supreme Court has not had a full and fair opportunity
to adjudicate the merits of the federal constitutional claims that Petitioner presents in his § 2254
petition. Although the South Carolina Supreme Court summarily dismissed Petitioner’s first PCR
appeal (the appeal of the statutorily noncompliant Form 4 order), it did not rule on the merits of any of
Petitioner’s PCR claims and simply dismissed the appeal without prejudice.11 Petitioner’s PCR counsel
subsequently filed an appeal of the PCR court’s formal order (the one issued on March 11, 2016,
containing findings of fact and conclusions of law) on March 25, 2016, and this is the appeal currently
pending in the South Carolina Supreme Court.12 The Court agrees with the Magistrate Judge that
Petitioner has not exhausted his state remedies because his state PCR appeal is pending in the state
supreme court, and therefore habeas review under § 2254 is improper at this time. See Rose v. Lundy,
455 U.S. 509, 518 (1982) (“The exhaustion doctrine is principally designed to protect the state courts’
role in the enforcement of federal law and prevent disruption of state judicial proceedings.”).
Finally, Petitioner makes an objection relating to the formal order that the PCR court issued on
March 11, 2016.13 Pet.’s Supp. Objs. at 1-2. He claims this order “does not comply with South
Carolina law pursuant to S.C. Code Ann. [§] 17-27-80”14 because it “fails to refute any assignments of
error raised in Petitioner’s PCR application” (and in effect does not comply with the South Carolina
The fact that the South Carolina Supreme Court did not rule on the merits of any PCR claims is illustrated
by the content of the Form 4 order, which contains no information about Petitioner’s PCR claims and simply states,
“PCR Hearing-DENIED.” See ECF No. 9-7 at 1. Significantly, the South Carolina Supreme Court issued a
subsequent order on October 21, 2016, stating “[P]etitioner’s belief that this Court’s order of March 10, 2016, has
had the effect of finally resolving this post-conviction relief case in his favor . . . is simply incorrect.” See Green
v. State, No. 2016-000658 (S.C. Sup. Ct.) (order filed October 21, 2016, denying Petitioner’s pro se motion to relieve
appellate PCR counsel), docket available at http://ctrack.sccourts.org/public/caseView.do?csIID=61794 (last visited
January 24, 2017).
The appeal is in the briefing stage: Petitioner’s appellate PCR counsel has filed a petition for a writ of
certiorari, and the State’s return to the petition is due by February 8, 2017. See Green v. State, No. 2016-000658
http://ctrack.sccourts.org/public/caseView.do?csIID=61794 (last visited January 24, 2017).
Respondent filed a copy of the March 11, 2016 order as an attachment to its return to Petitioner’s § 2254
petition, see ECF No. 9-8, and Petitioner has attached a copy of the March 11, 2016 order to his objections. See ECF
No. 24-1 at 3-10.
Section 17-27-80 provides in relevant part: “The [PCR] application shall be heard in, and before any judge
of, a court of competent jurisdiction in the county in which the conviction took place. . . . The court shall m ake
specific findings of fact, and state expressly its conclusions of law, relating to each issue presented.” S.C. Code
Ann. § 17-27-80.
Supreme Court’s March 10, 2016 order requiring as much). Id. Whether the PCR court’s March 11,
2016 order complies with S.C. Code Ann. § 17-27-80 is a matter of state law and is not appropriate for
federal habeas review. See 28 U.S.C. § 2254(a) (“[A] 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 violation of the Constitution or laws or treaties of the United
States” (emphasis added)); Chance v. Garrison, 537 F.2d 1212, 1215 (4th Cir. 1976) (“Matters of state
law not involving federal constitutional issues are not appropriate grounds for federal habeas corpus
In summary, the Court overrules all of Petitioner’s objections and accepts the Magistrate Judge’s
recommendation to grant Respondent’s motion for summary judgment and dismiss Petitioner’s § 2254
petition without prejudice.
Certificate of Appealability
A certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating reasonable jurists would find the court’s assessment
of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable and that
the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85.
In this case, the Court concludes Petitioner has not made the requisite showing of “the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
The Court has reviewed the entire record including the petition, the motion for summary
judgment, the return and attached exhibits, the R & R, and Petitioner’s objections. The Court has
conducted a de novo review of those portions of the R & R to which Petitioner objects. For the reasons
stated in this Order and in the R & R, the Court overrules Petitioner’s objections and adopts and
incorporates the R & R [ECF No. 21] by reference.
Accordingly, the Court GRANTS Respondent’s motion for summary judgment [ECF No. 10]
and DISMISSES Petitioner’s § 2254 without prejudice for failure to exhaust his state remedies. The
Court DENIES a certificate of appealability because Petitioner has not made “a substantial showing
of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
Florence, South Carolina
January 30, 2017
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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