McFadden v. State of South Carolina, The et al

Filing 11

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing the petition for writ of habeas corpus without prejudice and denying a certificate of appealability, for 8 Report and Recommendation, Signed by Honorable J Michelle Childs on November 20, 2012. (kbos)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Bernard McFadden,

#199135,

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Petitioner,
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vs.
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The State of South Carolina; Henry
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McMaster, South Carolina Attorney
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General,
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Respondents.
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__________________________________ )

Civil Action No.: 3:11-2394-JMC
ORDER AND OPINION

This matter is before the court on the Magistrate Judge’s Report and
Recommendation (“Report”) [Dkt. No. 8] regarding Petitioner Bernard McFadden’s
(“Petitioner”) Petition for a Writ of Habeas Corpus [Dkt. No. 1]. Petitioner is a state
prisoner incarcerated in the South Carolina Department of Corrections’ Kershaw
Correctional Institution, and he seeks habeas relief pursuant to 28 U.S.C. § 2254. The
Magistrate Judge’s Report, filed on September 26, 2011, recommends that the petition be
summarily dismissed without prejudice. The Report sets forth in detail the relevant facts
and legal standards on this matter, which the court incorporates herein without a
recitation.
The Magistrate Judge’s Report and Recommendation is made in accordance with
28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The
Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with
this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged
with making a de novo determination of those portions of the Report to which specific
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objections are made, and the court may accept, reject, or modify, in whole or in part, the
Magistrate Judge’s recommendation or recommit the matter with instructions. See 28
U.S.C. § 636(b)(1).
Petitioner timely filed objections [Dkt. No. 10] to the Magistrate Judge’s Report.
Specifically, Petitioner objected to the Magistrate Judge’s determination that the instant
petition is duplicative of a petition previously filed and recently denied in a case entitled
McFadden v. Warden of Kershaw Correctional Institution, Civil Action No. 3:11-00959JMC (D.S.C. June 20, 2012) (“C/A 11-959”). In that case, Petitioner filed a § 2254
motion challenging his November 19, 2010, conviction for burglary in the second degree.
Petitioner alleged that there was an ongoing, 10-year long conspiracy to incarcerate him
involving law enforcement officers, who planted evidence and staged the crime scene;
Petitioner’s attorney, who deliberately delayed filing the Notice of Appeal causing
Petitioner to forfeit his right to appeal; judicial officials, who made erroneous rulings; and
a court reporter, who altered his trial transcript. Report and Recommendation, C/A 11959 [Dkt. No. 12 at 2-3]. The Magistrate Judge recommended that Petitioner’s motion be
dismissed without prejudice because Petitioner had not exhausted his state court
remedies. Id. at 7 (citing 28 U.S.C. § 2254(b) and Woodford v. Ngo, 548 U.S. 81, 92
(2006) (“A state prisoner is generally barred from obtaining federal habeas relief unless
the prisoner has properly presented his or her claims through one ‘complete round of the
State’s established appellate review process’”)). In addition, the Magistrate Judge found
no extraordinary circumstances in the case that would allow a federal court to hear the
motion before Petitioner had exhausted his state remedies. Id. at 6. This court issued its

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order [Dkt. No. 19] adopting the Magistrate Judge’s Report and Recommendation on
June 6, 2012.
In the instant petition, the Magistrate Judge determined that the claims raised
were duplicative of the § 2254 motion then pending in C/A 11-959.

Report and

Recommendation, McFadden v. the State of South Carolina, et al, Civil Action 3:11-cv02394-JMC [Dkt. No. 8]. The Magistrate Judge took judicial notice that, at the time the
Report was filed1, Petitioner had not filed a state court Post Conviction Relief (PCR) case
related to the challenged conviction.2 Id. at 4. The Magistrate Judge also found that no
special circumstances warranted federal court review before the state process was
exhausted, noting the existence of adequate safeguards in the state court system to
preserve case records and protect Petitioner’s rights. Id. at 5. The Magistrate Judge
recommended dismissing the petition without prejudice and without requiring
Respondent to file a return on the grounds that the court would “not entertain two
separate, virtually identical § 2254 habeas corpus petitions filed by the same Petitioner,
seeking to challenge the same state court conviction, alleging the same constitutional
violations and involving the same parties.” Id. at 5 (citing Aloe Creme Laboratories, Inc.
v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970)).
In his objection, Petitioner distinguishes the instant petition from the previous
petition on the basis of four (4) additional issues raised in this petition, as well as five (5)

1
The Report and Recommendation was filed on September 26, 2011.
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This court takes judicial notice that Petitioner has since filed a claim for PostConviction Relief. See http://publicindex.sccourts.org/sumter/publicindex/PISearch.aspx.
The most recent activity in that case appears to be an Amended Petition and
Memorandum of Law in Support of Petitioner’s PCR claim filed on November 13, 2012.

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additional photograph exhibits allegedly proving that the crime scene had been staged.
However, the Magistrate Judge correctly determined that the second petition was
duplicative, viewing Petitioner’s additional four (4) issues as doing nothing more than
specifically enumerating the claims raised in C/A No. 11-959. Ultimately, these claims
challenge the same state court conviction and sentence as challenged in the previous
motion. As discussed in both petitions, a federal court may not hear these claims unless
the petitioner has exhausted his state remedies absent extraordinary circumstances. The
case is now finally in its proper venue in state court awaiting an outcome. For these
reasons, this court “may not retain the case on its docket, pending exhaustion, but should
dismiss the petition.” Galloway v. Stephenson, 510 F. Supp. 840, 846 (M.D.N.C. 1981).
After a thorough review of the Magistrate Judge's Report and Recommendation
and the record in this case, the court ACCEPTS the Magistrate Judge's Report [Dkt. No.
8] and DISMISSES Petitioner’s Petition for Writ of Habeas Corpus [Dkt. No. 1] without
prejudice.
Certificate of Appealability
The law governing certificates of appealability provides that:
(c)(2) A certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific
issue or issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable
jurists would find this court’s assessment of his constitutional claims is debatable or
wrong and that any dispositive procedural ruling by the district court is likewise
debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529
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U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the
legal standard for the issuance of a certificate of appealability has not been met.

IT IS SO ORDERED.

United States District Judge

November 20, 2012
Greenville, South Carolina

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