Rowell v. State of South Carolina

Filing 13

ORDER RULING ON REPORT AND RECOMMENDATION: It is ORDERED that the Magistrate Judges Report (ECF No. 8 ) is adopted, and this action is dismissed without prejudice and without requiring Respondent to file a return.IT IS SO ORDERED. Signed by Honorable Bruce Howe Hendricks on 09/27/2017. (dsto, )

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

Talmadge Leroy Rowell, #357729,

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Petitioner,
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v.
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Warden, Lee Correctional Institution,
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Respondent.
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________________________________)

Civil Action No. 4:17-2084-BHH
ORDER

This matter is before the Court on Petitioner Talmadge Leroy Rowell’s pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C.
§ 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), D.S.C., the matter was referred to a
United States Magistrate Judge for initial review.
On August 17, 2017, Magistrate Judge Thomas E. Rogers III filed a Report and
Recommendation (“Report”) outlining the issues and recommending that the Court
summarily dismiss this § 2254 petition without prejudice and without requiring Respondent
to file an answer or return. Attached to the Report was a notice advising Plaintiff of his right
to file written objections to the Report within fourteen days of being served with a copy.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court
is charged with making a de novo determination only of those portions of the Report to
which specific objections are 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). In the absence of specific
objections, the Court reviews the matter only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a
timely filed objection, a district court need not conduct a de novo review, but instead must
‘only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
DISCUSSION
On November 5, 2013, Petitioner was convicted of criminal sexual conduct with a
minor, second degree, and lewd act with a child under 16 after a jury trial. Petitioner
appealed, and on August 17, 2015, the remittitur was sent from the South Carolina Court
of Appeals. On July 20, 2015, Petitioner filed an application for post-conviction relief
(“PCR”). On May 24, 2017, Petitioner voluntarily dismissed his PCR with prejudice.
On August 8, 2017, Petitioner filed the instant § 2254 petition. As a first ground for
relief, Petitioner claims that his ex-wife conspired to have him charged with the crimes at
issue and that he “was not at the hearing to testify.” (ECF No. 1 at 5.) As ground two, he
states that the detective failed to investigate his case. (Id. at 7.) As ground three,
Petitioner contends that the public defender, the detective, and the solicitor conspired to
have him convicted and that his attorney did not call the key witnesses. (Id. at 8.) Lastly,
as ground four, Petitioner contends that his career has been taken from him based on lies.
(Id. at 10.) Petitioner indicates in his petitioner that none of his grounds was raised on
direct appeal or through PCR, and he explains that he has “not had a chance” to present
all of his grounds to the highest state court having jurisdiction. (Id. at 12.) Petitioner
indicates that his PCR application is still pending; however, as the Magistrate Judge
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determined, a review of the public index indicates that Petitioner’s PCR application was
voluntarily dismissed on May 24, 2017.1 (Id.)
In his Report, the Magistrate Judge determined that it is clear from the petition that
Petitioner has not exhausted his grounds for relief, and that this Court is precluded from
hearing Petitioner’s procedurally defaulted claims because Petitioner has not shown either
cause and actual prejudice to excuse the default or that the Court’s failure to consider the
claims will result in a fundamental miscarriage of justice.
On September 7, 2017, Petitioner filed objections to the Report and included a copy
of a letter he mailed to the South Carolina Supreme Court and the Office of Disciplinary
Counsel, wherein he alleges that his PCR counsel never explained his rights to him and
that he did not understand that his PCR application was being voluntarily dismissed. (ECF
No. 11-1.) In his objections, Petitioner asks the Court not to bar him from petitioning for
future habeas corpus relief and/or to hold his petition in abeyance pending the outcome of
his state case. (ECF No. 11 at 2.)
Here, as previously mentioned, Petitioner clearly states in his petition that he did not
raise any of his grounds either on direct appeal or in his PCR application. Importantly,
although Plaintiff now complains that his PCR application was voluntarily dismissed without
his knowledge, nowhere does Plaintiff offer any explanation or excuse for the failure to
raise the grounds initially on direct appeal or in his PCR application. See Wolfe v. Johnson,
565 F.3d 140, 160 (4th Cir. 2009) (noting that a state prisoner seeking § 2254 relief faces
several procedural obstacles and that he should present his claims in state court before

1

See http://publicindex.sccourts.org/horry/publicindex/ with search parameters limited by Petitioner’s

name.

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raising them in federal court or “they will generally be procedurally defaulted, and the
federal court will be unable to adjudicate them”). Moreover, the Court finds that Petitioner
has not demonstrated cause and actual prejudice to excuse the procedural default of his
claims. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Nor does the Court does
believe that Petitioner has made the requisite showing of actual innocence to overcome the
procedural bar, as Petitioner has not shown that it is more likely than not that no
reasonable juror would have convicted him in light of some new evidence. See Wolfe, 565
F.3d 160-64, and Schlup v. Delo, 513 U.S. 298 (1995). Accordingly, the Court agrees with
the Magistrate Judge that this petition is subject to dismissal without prejudice.
CONCLUSION
Based on the foregoing, it is ORDERED that the Magistrate Judge’s Report (ECF
No. 8) is adopted, and this action is dismissed without prejudice and without requiring
Respondent to file a return.
IT IS SO ORDERED.
/s/Bruce H. Hendricks
The Honorable Bruce Howe Hendricks
United States District Judge
September 27, 2017
Charleston, South Carolina
CERTIFICATE OF APPEALABILITY
The governing law 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).
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28 U.S.C. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable
jurists would find this Court's assessment of his constitutional claims 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 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001). Here, the Court finds that the legal
standard for the issuance of a certificate of appealability has not been met. Therefore, a
certificate of appealability is denied.

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