Berry v. Warden

Filing 8

ORDER adopting 6 Report and Recommendation of Magistrate Judge Bruce Howe Hendricks dismissing petition without prejudice and without requiring Respondent to file a Return. Signed by Honorable Richard M Gergel on 9/13/12.(hhil, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Kristopher W. Berry, #347006,

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Civil Action No. 2: 12-2058-RMG

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Petitioner,

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vs.

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Warden of Evans Correctional Institution,

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ORDER

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Respondent.

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Kristopher W. Berry, an inmate at the Evans Correctional Institution of the South
Carolina Department of Corrections, petitions pro se for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 72.02(B)(2)(c)
DSC, this matter was referred to the United States Magistrate Judge for all pretrial proceedings.
Berry filed his habeas petition on July 20, 2012: (Dkt. No.1). The Magistrate Judge
issued an Order on August 6, 2012 to direct the Clerk to replace Respondent State of South
Carolina with Respondent Warden of Evans Correctional Institution, to note payment of the
filing fee, to remind Petitioner of certain format and mailing requirements, and to note that
Petitioner receives the benefit of the holding in Houston v. Lack, 487 U.S. 266 (1988) (prisoner's
pleading was filed at the moment of transfer to prison officials for delivery to the court). (Dkt.
\

No.5). Also on August 6, 2012, the Magistrate Judge issued a Report and Recommendation that
the Petition be dismissed without prejudice and without requiring a return filing from
Respondent. (Dkt. No.6).

1 Petitioner would receive the benefit of the holding of Houston v. Lack, 487 U.S. 266 (1988), but this petition was
not delivered by petitioner to prison officials. Instead, prisoner's relative filed the petition. (Dkt. No.1).

Petitioner was advised by the Magistrate Judge of the procedures and requirements for
filing objections to the Report and the serious consequences of failing to do so. Petitioner has
not timely filed objections to the Report and Recommendation. As explained herein, this Court
has reviewed the record and agrees with the Report and Recommendation, and therefore
summarily dismisses the petition without prejudice.

BACKGROUND
Petitioner was convicted July 21, 2011 in Darlington County for criminal solicitation of a
minor and sentenced to a five-year term of incarceration. (Dkt. No. 1 at 1). Petitioner states that
he appealed his judgment of conviction and is "still awaiting appeal briefing."

(ld. at 2).

Further, he states that a motion for a new trial is pending in state court. (ld. at 3-4). The petition
also indicates that Petitioner has not filed an application for Post-Conviction Relief, that he has
not yet exhausted the state court appeals process, and that he has not yet presented all grounds
for relief to the highest state court having jurisdiction. (ld. at 2, 12).

LAW/ANAL YSIS
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261,270-71 (1976). This Court is charged with making
a de novo determination of those portions of the Report and Recommendation to which specific
objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This
Court may also "receive further evidence or recommit the matter to the magistrate judge with
instructions." Id. In the absence of specific objections to the Report and Recommendation, this

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Court is not required to give any explanation for adopting the recommendation. Camby v. Davis,
718 F.2d 198,200 (4th Cir. 1983).
After reviewing the record, the applicable legal authorities, and the Report and
Recommendation of the Magistrate Judge, the Court agrees with and wholly adopts the
conclusions of the Magistrate Judge.

Petitioner was convicted and sentenced in Darlington

County, South Carolina, but has not yet exhausted his state remedies. A petitioner must exhaust
state remedies prior to seeking federal habeas relief:
(b)( 1) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that­
(A) the applicant has exhausted the remedies available in the courts of the
State; or
(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the
rights of the applicant.
22 U.S.C. § 2254. Petitioner is a person in custody pursuant to the judgment of a state court and
has not yet exhausted his state remedies (see Dkt. No.1) so his application for a writ of habeas
corpus shall not be granted. 22 U.S.C. § 2254(b)(1). There is no allegation that the available
state process is ineffective or absent. (See Dkt. No.1). Since Petitioner's application is denied,
requiring Respondent to file a return would be an unnecessary burden on Respondent. See Toney

v. Gammon, 79 F.3d 693, 697 (8th Cir. 1996) ("[A] petition may be summarily dismissed if the
record clearly indicates that the petitioner's claims are either barred from review or without
merit."); Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) ("[T]he District Court has a duty to
screen out a habeas corpus petition which should be dismissed for lack of merit on its face.").
Respondent is not required to file a return.

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"Our Federalism" is a concept which represents "a system in which there is sensitivity to
the legitimate interests of both State and National Governments, and in which the National
Government, anxious though it may be to vindicate and protect federal rights and federal
interests, always endeavors to do so in ways that will not unduly interfere with the legitimate
activities of the States." Younger v. Harris, 401 U.S. 37,44 (1971). In addition, "federal courts
should abstain from the decision of constitutional challenges to state action, however meritorious
the complaint may be, 'whenever [the] federal claims have been or could be presented in
ongoing state judicial proceedings that concern important state interests. ", Cinema Blue of
Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 52 (4th Cir. 1989) (quoting Hawaii Hous. Auth. v.
Midkiff, 467 U.S. 229, 237-38 (1984». For the foregoing reasons, this Court denies the grant of

writ of habeas corpus to Petitioner, a person in custody pursuant to the judgment of a state court
who has not yet exhausted his available state remedies, because to do otherwise could be an
undue federal interference with an ongoing state judicial proceeding that concerns important
state interests.
CONCLUSION

The Court, after a thorough review of the Report and Recommendation of the Magistrate
Judge and the relevant case law, finds the Magistrate applied sound legal principles to the facts
of this case.

Therefore, this Court adopts the Magistrate Judge's Report and Recommendation

as the Order of this Court. The Petitioner's application for a writ of habeas corpus (Dkt. No.1)
is DISMISSED without prejudice and Respondent is not required to file a Return.
AND IT IS SO ORDERED.

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United States District Court Judge
Septemberl> ,2012
Charleston, South Carolina

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