Boyd v. South Carolina, State of

Filing 49

ORDER accepting 44 Report and Recommendation. It is ordered that the First Habeas Action (Civil Action No. 1:11-cv-02981-TLW) is reclassified to a § 2254 petition and is dismissed without prejudice for failure to exhaust state court remedies. Signed by Honorable Terry L Wooten on 11/27/2012.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION

Billy Roy Boyd,
Petitioner,
vs.
State of South Carolina,
Respondent.
____________________________
Billy Roy Boyd, # 349065,
Petitioner,
vs.
Bernard McKie, Warden of Kirkland
Correctional Institution,
Respondent.
__________________

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C.A. No. 1:11-cv-2981-TLW
[Fourth Circuit Docket No. 12-6490]

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C.A. No. 1:12-cv-00201-TLW
[Fourth Circuit Docket No. 12-6553]

ORDER

ORDER

The above-captioned cases were formerly pending in this District Court.1 When the
matters were in this District Court, a District Court Clerk’s Office filing error affected both of
the cases. Specifically, the Petition filed in the Second Habeas Action, C/A No. 1:12-cv-00201TLW, should have been filed as an Amended Petition in the First Habeas Action, C/A No. 1-11cv-02981-TLW, but instead was docketed as a new civil action. The Fourth Circuit Court of

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Both cases were originally assigned to United States District Judge Timothy M. Cain. On October 10, 2012, the
two cases were reassigned to United States District Judge Terry L. Wooten, with no change in assignment of the
United States Magistrate Judge, Shiva V. Hodges. (See Doc. #41 in C/A No. 1:11-cv-02981; Doc. #24 in C/A No.
1:12-cv-00201).

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Appeals ordered a limited remand of the cases on August 16, 2012 to allow the District Court to
correct that filing error. (Doc. #35, in C/A No. 1:11-cv-02981-TLW; Doc. #20, in C/A No. 1-12cv-00201-TLW).
The matters are now before this Court for review of the Report and Recommendation
(Athe Report@) filed on October 10, 2012 by United States Magistrate Judge Shiva V. Hodges, to
whom the cases had previously been assigned pursuant to 28 U.S.C. ' 636(b) and Local Rule
73.02(B)(2), D.S.C. (Doc. #44, in C/A No. 1:11-cv-02981-TLW; Doc. #27, in C/A No. 1:12-cv00201-TLW).
In the Report, Magistrate Judge Hodges initially directed the District Court Clerk’s
Office to correct the filing error by docketing the petition in the Second Habeas Action (Civil
Action No. 1:12-cv-00201-TLW) as an Amended Petition in the First Habeas Action (Civil
Action No. 1:11-cv-2981-TLW) (“Amended Petition”).
Further, in the Report Judge Hodges recommends that the District Court reclassify the
Petition filed in the First Habeas Action, Civil Action No. 1:11-cv-2981-TLW, to a § 2254
petition, and subsequently dismiss it, without prejudice, for failure to exhaust state court
remedies. Additionally, Magistrate Judge Hodges recommends that the District Court dismiss,
without prejudice, the petition filed in the Second Habeas Action, Civil Action No. 1:12-cv00201-TLW, on the basis that it is duplicative of the First Habeas Action, Civil Action No. 1:11cv-2981-TLW. Petitioner filed objections to the Magistrate Judge’s Report on October 22, 2012.
(Doc. #46, in C/A No. 1:11-cv-02981-TLW).
This Court is charged with conducting a de novo review of any portion of the Magistrate
Judge’s Report to which a specific objection is registered, and may accept, reject, or modify, in
whole or in part, the recommendations contained in that Report. 28 U.S.C. § 636. In conducting

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this review, this Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections. . . . The Court is not bound by the
recommendation of the magistrate judge but, instead, retains responsibility for the
final determination. The Court is required to make a de novo determination of
those portions of the report or specified findings or recommendation as to which
an objection is made. However, the Court is not required to review, under a de
novo or any other standard, the factual or legal conclusions of the magistrate
judge as to those portions of the Report and Recommendation to which no
objections are addressed. While the level of scrutiny entailed by the Court's
review of the Report thus depends on whether or not objections have been filed,
in either case, the Court is free, after review, to accept, reject, or modify any of
the magistrate judge's findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992)
(citations omitted).
In light of this standard, this Court has reviewed, de novo, the Report and the objections
thereto. After careful consideration, this Court ACCEPTS the Magistrate Judge’s Report. (Doc.
#44, in C/A No. 1:11-cv-2981-TLW; Doc. #27, in C/A No. 1:12-cv-00201-TLW).
As an initial matter, the United States District Court Clerk’s Office is directed to correct
the filing error by docketing the Petition in the Second Habeas Action (Civil Action No. 1:12-cv00201-TLW, Doc. #1) as an Amended Petition in the First Habeas Action (Civil Action No.
1:11-cv-02981-TLW).
IT IS HEREBY ORDERED that the Second Habeas Action (Civil Action No. 1:12-cv00201-TLW) is DISMISSED without prejudice because it is duplicative of the First Habeas
Action. It is further ORDERED that the First Habeas Action (Civil Action No. 1:11-cv-02981TLW) is hereby reclassified to a § 2254 petition and is DISMISSED without prejudice for
failure to exhaust state court remedies.
Pursuant to the Fourth Circuit Court of Appeals’ Order of Limited Remand, the record, as
supplemented, will be returned to the Fourth Circuit for further consideration.

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“If still

dissatisfied, Boyd can also appeal to [the Fourth Circuit] from any subsequent final order or
orders of the district court.” (Doc. #35 at 3, in C/A No. 1:11-cv-2981-TLW; Doc. #20 at 3, in
C/A No. 1:12-cv-00201-TLW).
IT IS SO ORDERED.
/s Terry L. Wooten
TERRY L. WOOTEN
United States District Judge.
November 27, 2012
Florence, South Carolina

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