Johnson v. Warden Livesay Correctional Institution

Filing 31

ORDER RULING ON REPORT AND RECOMMENDATION: The court declines to adopt the Report and Recommendation (ECF No. 16 ). Petitioner's Motion to Stay (ECF No. 18 ) is DENIED as moot. Petitioner's Motion to Compel Discove ry (ECF No. 21 ), Motion to Void Judgment (ECF No. 22 ), Motion to Strike (ECF No. 23 ) and Motion for Summary Judgment (ECF No. 24 ) are all DENIED without prejudice. The matter is hereby recommitted to the Magistrate Judge for further proceedings. IT IS SO ORDERED. Signed by Honorable Margaret B Seymour on 3/21/2016. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Damien O. Johnson,
Petitioner,
vs.
Warden, Livesay Correction Institution
Respondent.

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C.A. No. 5:15-2059

ORDER AND OPINION

Damien O. Johnson (“Petitioner”) is an inmate who is currently housed at the Tyger River
Correctional Institution, in Enoree, South Carolina. On May 19, 2015, Petitioner filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his drug-trafficking and resistingarrest convictions entered on a guilty plea in Horry County, South Carolina, on March 5, 2012. In
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United
States Magistrate Judge Kaymani D. West for pretrial handling. On May 19, 2015, Petitioner was
granted leave to proceed in forma pauperis. On June 17, 2015, the Magistrate Judge issued a Report
and Recommendation recommending that Petitioner’s case be dismissed without prejudice because
Petitioner failed to fully exhaust his state remedies. On July 8, 2015, Petitioner filed objections to
the Report and Recommendation.
That same day, Petitioner filed a Motion for a Stay and Abeyance to exhaust all of his state
remedies. ECF No. 18. Subsequently, on July 16, 2015, Petitioner filed a Motion to Compel
Discovery. ECF No. 21. Additionally, on August 24, 2015, Petitioner filed a Motion to Void
Judgment (ECF No. 22), Motion to Strike (ECF No. 23), and Motion for Summary Judgment (ECF
No. 24). All of these motions related to his claims on appeal and the state court’s lengthy processing
of his appeal application.

BACKGROUND
Petitioner alleged that his direct appeal concluded on September 25, 2012; however, the
Magistrate Judge indicated that public records show that Petitioner’s direct appeal concluded with
the filing of the remittitur from the South Carolina Court of Appeals on October 29, 2012. ECF No.
16 at 1. Petitioner filed a Post Conviction Relief (“PCR”) Application in state court on August 8,
2014. ECF No. 1 at 3. On May 19, 2015, when Petitioner filed his petition for a writ of habeas
corpus, Petitioner acknowledged that his state action was pending. However, he wanted to proceed
in bringing his petition in Federal Court because he wanted to assert his right to “access the courts”
because he thought he was experiencing “extraordinary delay” in the processing of his application.
ECF No. 1 at 6, 8, 10. On June 17, 2015, the filing date of the Magistrate Judge’s Report and
Recommendation, Petitioner’s application was still pending in the Horry County Court of Common
Pleas. See Horry County Clerk of Courts, http://publicindex.sccourts.org/Horry/PublicIndex/Case
Details.aspx?CourtAgency=26002&Casenum=2014CP2605195&CaseType=V (last consulted March
15, 2015).
DISCUSSION
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 (1976). The court is charged with making a de novo
determination on any portions of the Report and Recommendation to which a specific objection is
made. Id. The court may accept, reject, or modify, in whole or in part, the recommendation made
by the Magistrate Judge. 28 U.S.C. § 636(b)(1).
Petitioner objected to the Magistrate Judge’s Report and Recommendation, arguing that he
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attempted to exhaust his state remedies but was “denied and refused due process, effective assistance
of counsel, and his right to a speedy appeal.” ECF No. 19 at 5. Petitioner requested that the court
grant a stay in the proceedings so that he may exhaust his state court remedies. Id. at 2.
The habeas corpus statute requires that state remedies be exhausted before a federal court
may grant habeas corpus relief to a state prisoner. Patterson v. Leeke, 556 F.2d 1168, 1170 (4th Cir.
1977). Title 28 United States Code Section 2254(b) provides:
An application for a writ of habeas corpus in behalf of a person in custody pursuant
to the judgment of a State court shall not be granted unless it appears that the
applicant has exhausted the remedies available in the courts of the State, or that there
is either an absence of available State corrective process or the existence of
circumstances rendering such process ineffective to protect the rights of the prisoner.
Id. “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's
highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.1997). The exhaustion requirement
is based upon the notion that states “should have the first opportunity to address and correct alleged
violations of state prisoner’s federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991). A
prisoner may attack a state court conviction by filing a direct appeal and/or by filing an application
for relief under the South Carolina Post Conviction Procedure Act, S.C. Code Ann. §§ 17-27-10 et
seq. See Patterson v. Leeke, 556 F.2d 1168 (4th Cir. 1977) (holding that South Carolina prisoners
whose cases have not been reviewed on direct appeal must pursue post-conviction relief before
applying for habeas corpus relief); see also Miller v. Harvey, 566 F.2d 879, 880-81 (4th Cir. 1977).
The court, having carefully reviewed the record, agrees with the Magistrate Judge’s Report
and Recommendation, that Petitioner had not exhausted his state court remedies at the time he filed
the within action. Nevertheless, the court’s review of Petitioner’s state court records reveals that
Petitioner’s appeal application was dismissed on November 4, 2015. Petitioner then filed a notice
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of appeal with the South Carolina Supreme Court, but on February 9, 2016, and February 19, 2016,
the South Carolina Supreme Court dismissed by remittitur all claims related to Petitioner’s
application. Therefore, Petitioner has now exhausted his state court remedies. Accordingly, the court
declines to adopt the Magistrate Judge’s Report and Recommendation. Petitioner should amend his
petition for writ of habeas corpus within 30 days of the date of filing of this order in light of the
dismissal of his PCR application.
CONCLUSION
The court grants leave to the Petitioner to amend the within petition for writ of habeas corpus
because Petitioner has now exhausted his state court remedies. The court declines to adopt the Report
and Recommendation (ECF No. 16). Petitioner’s Motion to Stay (ECF No. 18) is DENIED as moot.
Petitioner’s Motion to Compel Discovery (ECF No. 21), Motion to Void Judgment (ECF No. 22),
Motion to Strike (ECF No. 23) and Motion for Summary Judgment (ECF No. 24) are all DENIED
without prejudice. The matter is hereby recommitted to the Magistrate Judge for further proceedings.
IT IS SO ORDERED.
/s/ Margaret B. Seymour
The Honorable Margaret B. Seymour
Senior United States District Judge
March 21, 2016
Columbia, South Carolina

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