Frazier v. Padula

Filing 29

ORDER RULING ON REPORT AND RECOMMENDATIONS. This court hereby adopts the Magistrate Judges recommendation to dismiss, without prejudice, Petitioners challenge to his 1995 conviction. However, in light of Petitioners request to amend his Petition, this court declines to adopt the recommendation that Petitioners challenge to his 1998 conviction be dismissed. Accordingly, Petitioner is hereby ordered to file an amended Petition within 30 days ofthe date of this order. This court also denies the Motion to Stay 21 . Thiscase is hereby recommitted to the Magistrate Judge for further ruling on Petitioners Amended Petition.. Signed by Honorable Joseph F Anderson, Jr on 05/29/2012. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Willie Benard Frazier,
Petitioner,
vs.
Warden Padula,
Respondent.

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C/A No.: 4:12-cv-112-JFA

ORDER

The pro se petitioner, Willie Frazier, seeks federal habeas relief under 28 U.S.C. §
2254.

The Magistrate Judge assigned to this action has prepared a Report and

Recommendation (“the Report”) wherein he suggests that the defendant’s petition be
dismissed without prejudice and without service of process. Having reviewed the entire
record, including Petitioner’s objections, the court finds that the Magistrate Judge fairly
and accurately summarized the facts and applied the correct principles of law.
Accordingly, the court adopts the reasoning of the Magistrate Judge’s Report and fully
incorporates it into this order. Rather than dismissing the entire petition, the court
dismisses only the challenge to the sentence that Petitioner has already served. The court
does so to allow Petitioner to amend his petition with respect to the challenge to his
current sentence.
I.

Standard of Review
The Magistrate Judge made his review in accordance with 28 U.S.C.

§ 636(b)(1)(B) and Local Civil Rule 73.02.
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The Magistrate Judge only makes a

recommendation to the court. It has no presumptive weight, and the responsibility for
making a final determination remains with the court. Mathews v. Weber, 423 U.S. 261,
270–71 (1976). Parties are allowed to make written objections to a Magistrate Judge’s
report within fourteen days after being served a copy of the report.

28 U.S.C. §

636(b)(1). The court is charged with making a de novo determination of those portions
of the Report to which specific objection is made and the court may accept, reject, or
modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit
the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The court remains mindful that Petitioner appears before the court pro se, and
therefore, his pleadings are accorded liberal construction. Estelle v. Gamble, 429 U.S. 97
(1976). The requirement of liberal construction, however, does not mean that the court
can ignore a clear failure in a pleading to allege facts which set forth a claim currently
cognizable in a federal district court. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th
Cir. 1990).
II.

Factual and Procedural History
Petitioner is currently incarcerated at the Lee Correctional Institution in

Bishopville, South Carolina. In his Petition, he challenges a state sentence that he
received on February 8, 1995 for attempted armed robbery and assault and battery with
intent to kill. Petitioner was sentenced under the Youthful Offender Act (“YOA”), and in
his filings in this court, Petitioner contends that the sentence is improper because the
offenses that he plead guilty to did not qualify him to be sentenced under the YOA. He
has fully served that 1995 sentence; however, Petitioner contends that he is still “in
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custody” on the 1995 sentence for purposes of federal habeas law because his former
conviction adversely affected his current life sentence, which was handed down in state
court June 28, 1998.
Petitioner filed the instant Petition on January 12, 2012. (ECF No. 1). On March
9, 2012, the Magistrate Judge assigned to this case issued his Report and
Recommendations recommending that this court dismiss this Petition without prejudice
and without issuance of service of process. (ECF No. 11). Petitioner filed a Motion for
an Extension of Time to File Objections on March 28, 2012 (ECF No. 17), and this court
granted the extension. On April 4, 2012, Petitioner filed a Motion to Stay. (ECF No.
21). On April 16, 2012, Petitioner filed Objections to the Magistrate Judge’s Report.
III.

Discussion
A.

Report and Recommendations

In the Report and Recommendation, the Magistrate Judge opines that this court
does not have subject matter jurisdiction over the instant case because Petitioner is not
“in custody” on the 1995 sentence, which he seeks to challenge through this § 2254
petition. Federal courts are courts of limited jurisdiction and, as such, may only hear and
decide cases when they have been given the authority to do so by the Constitution and by
federal statute. In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). “If the
court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.” Fed. R. Civ. P. 12(h)(3). The petitioner has filed his petition for writ
of habeas corpus under 28 U.S.C. § 2254, which states

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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.
(2006) (emphasis added). “[A] sentence that has been fully served does not satisfy the
custody requirement of the habeas statute, despite the collateral consequences that
generally attend a criminal conviction.” Tinder v. Paula, 725 F.2d 801, 803 (1st Cir.
1984). As such, a person who files a habeas petition after he has fully served his
sentence is not “in custody” for purposes of a federal district court’s subject matter
jurisdiction, and a habeas petition filed by such a person would be properly denied.
DeLong v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990). The Supreme Court of the
United States has found that “once the sentence imposed for a conviction has completely
expired, the collateral consequences of that conviction are not themselves sufficient to
render an individual ‘in custody’ for the purposes of a habeas attack upon it.” Maleng v.
Cook, 490 U.S. 488, 492 (1989). Therefore, Petitioner cannot be considered “in custody”
on his 1995 sentence.
The Magistrate Judge points out that Petitioner appears to challenge his current
life sentence on the basis of the alleged defect in the 1995 sentence. While Petitioner is
clearly currently “in custody” on his 1998 sentence, a habeas petitioner cannot challenge
a current sentence by calling a prior sentence into question. See Lackawanna County
Dist. Attorney v. Coss, 532 U.S. 394, 402 (2001). Limited exceptions to this rule have
been recognized or discussed, but none of those exceptions have been alleged in this case.
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See Lackawanna, 532 U.S. at 404 (where there was a failure to appoint counsel in
violation of the Sixth Amendment in that former conviction); Daniels v. United States,
532 U.S. 374, 383–84 (2001) (where no channel of review was available to a defendant
through no fault of his own). As such, Petitioner’s current sentence is not subject to
challenge on the basis of his prior sentence.
B.

Specific Objections

The petitioner has made a number of specific objections to the Magistrate Judge’s
Report. The court addresses each of the specific objections but finds that none of the
petitioner’s objections overcome the lack of subject matter jurisdiction over the challenge
to the 1995 sentence or the improper challenge to the 1998 sentence based on the 1995
sentence. However, in light of the petitioner’s request to amend his petition, the court
will not dismiss Petitioner’s challenge to his 1998 sentence and will allow Petitioner to
amend the Petition as to that claim only.
As an initial matter, Petitioner challenges a number of facts and statements
provided by the Magistrate Judge in his Report relating to the details of Petitioner’s
sentences and the basis for Petitioner’s challenges to these sentences. Some of these
alleged misstatements are the result of Petitioner’s somewhat rambling assertions
contained in his filings with this court. In this Order, the court has attempted to correct
what Petitioner characterizes as misstatements made by the Magistrate Judge, but none of
these corrections have any effect on the reasoning of the Magistrate Judge or his reasons
for recommending that this case be dismissed.

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Petitioner also takes issue with the Magistrate Judge’s use of various cases in his
Report and Recommendation. First, Petitioner argues that the Magistrate Judge has
misapplied Maleng. This court disagrees and finds that the Magistrate Judge properly
applied Maleng to the facts of this case. Maleng makes it clear “that once the sentence
imposed for a conviction has completely expired, the collateral consequences of that
conviction are not themselves sufficient to render an individual ‘in custody’ for the
purposes of a habeas attack upon it.” 490 U.S. 488, 492. The Magistrate Judge properly
found that this court lacks subject matter jurisdiction of Petitioner’s challenge to his 1995
sentence based on Maleng. Second, Petitioner objects to some of the cases that the
Magistrate Judge listed in the Standard of Review section of the Report. According to
Petitioner, “[t]hese precedents deal with indigent defendants seeking to file 1983 claim[s]
without funds to proceed on meritless claims, [but] none of these cases support the
Magistrate[’s] R/R that petitioner claims are without merit.” (ECF No. 25, p. 9). The
petitioner has misunderstood the Magistrate Judge’s use of these cases. They are not
intended to support the position that his claims are without merit—rather, they serve to
advise the petitioner of various cases that have informed the Magistrate Judge’s review,
specifically with regards to frivolousness and how the court construes pro se petitions.
Petitioner objects generally to the Magistrate Judge’s conclusion that this court
lacks subject matter jurisdiction, and he further notes his objection to the Report for
failing to issue an order to show cause on the respondent. Petitioner also objects to the
idea expressed by the Magistrate Judge that Petitioner is unable to challenge his current
sentence based on his previous sentence, and he urges this court to require the state court
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to vacate his prior conviction.

However, as explained above, this court finds the

Magistrate Judge’s reasoning in his Report to be sound. The court agrees with the
Magistrate Judge that it lacks jurisdiction over Petitioner’s 1995 sentence.
Finally, Petitioner objects to the Report for dismissing his petition without
opportunity to amend and for failing to specify when Petitioner can refile. Because this
court lacks subject matter jurisdiction over Petitioner’s challenge to his 1995 sentence,
this court is constrained to dismiss that claim. However, in light of this newly-raised
request to amend, the court will allow Petitioner to amend his petition with respect to his
challenge of his current sentence.
This court hereby adopts the Magistrate Judge’s recommendation to dismiss,
without prejudice, Petitioner’s challenge to his 1995 conviction. However, in light of
Petitioner’s request to amend his Petition, this court declines to adopt the
recommendation that Petitioner’s challenge to his 1998 conviction be dismissed.
Accordingly, Petitioner is hereby ordered to file an amended Petition within 30 days of
the date of this order. This court also denies the Motion to Stay. (ECF No. 21). This
case is hereby recommitted to the Magistrate Judge for further ruling on Petitioner’s
Amended Petition.
IT IS SO ORDERED.

May 29, 2012
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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