Buckle v. Boulware
ORDER: The court finds that Petitioner's motion for voluntary dismissed (ECF No. 30 ) should be GRANTED. The motion to alter or amend the Report (ECF No. 31 ), as well as Respondent's motion for summary judgment (ECF No. 18 ), are DENIED as MOOT. The court MOOTS the Report and Recommendation (ECF No. 28 ). IT IS SO ORDERED. Signed by Honorable Timothy M Cain on 7/26/2016. (mcot, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Evelyn Buckle, #309884,
M.C. Boulware, Warden,
Civil Action No. 5:15-2088-TMC
Petitioner Evelyn Buckle, a state prisoner proceeding pro se, is seeking habeas corpus
relief pursuant to 28 U.S.C. § 2254.1 Before the court is the magistrate judge’s Report and
Recommendation (“Report”), recommending that the court grant Respondent’s motion for
summary judgment (ECF No. 18) and that Petitioner’s petition be denied. (ECF No. 28.)
Petitioner was advised of her right to file objections to the Report. (ECF No. 28-1). Rather than
filing objections, however, Petitioner has filed a response in essence agreeing with the Report
and requesting a voluntary dismissal of the petition so that she might exhaust her state remedies.
(ECF No. 30). Petitioner also filed a motion to alter or amend the Report. (ECF No. 31).
The Report has no presumptive weight and the responsibility to make a final determination
remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). In the absence of
objections to the Report, this court is not required to provide an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “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
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02, DSC, this matter was initially referred to
a magistrate judge.
accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
In lieu of filing objections, Petitioner filed a “motion to withdraw habeas corpus
application to proceed back to state court.” (ECF No. 30). In that motion, Petitioner asks this
court to allow her to withdraw her habeas claims so that she may exhaust her state remedies.
(ECF No. 30). She claims that she seeks this relief because of “after-discovered evidence.”
(ECF No. 30 at 1). Petitioner seeks the same relief in her motion to alter or amend the Report.
(ECF No. 31).
Respondent has filed a reply to Petitioner’s objections and a response to her motion.
(ECF Nos. 33, 34). In those filings, Respondent asks this court to deny the request to dismiss the
claims because she has not indicated any “after-discovered evidence” that would permit her to
present the unexhausted claims in state court. (ECF Nos. 33 at 2; 34 at 2). Thus, Respondent
claims that any future PCR applications would be barred, and accordingly, the dismissal would
be futile. (ECF Nos. 33 at 2; 34 at 2).
Fed. R. Civ. P. 41(a)(2) provides district courts with authority to dismiss an action at
Petitioner’s request even after Respondent has filed a motion for summary judgment. As a
general rule, “[a] plaintiff’s motion under Rule 41(a)(2) for dismissal without prejudice should
not be denied absent substantial prejudice to the defendant.” S.A. Andes v. Versant Corp., 788
F.2d 1033, 1036 (4th Cir. 1986) (citation omitted). In determining whether a Petitioner’s request
for voluntary dismissal will cause “substantial prejudice to the defendant,” district courts should
consider all relevant factors under the circumstances, including: “(1) the opposing party’s effort
and expense in preparing for trial; (2) excessive delay or lack of diligence on the part of the
movant; (3) insufficient explanation of the need for a dismissal; and (4) the present stage of the
litigation, i.e., whether a motion for summary judgment is pending.” Gross v. Spies, No. 962146, 1998 WL 8006, at *5 (4th Cir. Jan. 13, 1998) (citations omitted). “[P]rejudice to the
defendant does not result from the prospect of a second lawsuit” or “the possibility that the
plaintiff will gain a tactical advantage over the defendant in future litigation.” Davis v. USX
Corp., 819 F.2d 1270, 1274–75 (4th Cir. 1987) (citations omitted).
After a consideration of the briefing and relevant factors, the court finds that the motion
for voluntary withdrawal should be granted. Respondent has not argued that it will suffer
substantial prejudice from granting the dismissal. Respondent instead focuses his arguments on
whether the claims would be barred as futile. Under South Carolina law,
All grounds for relief available to an applicant under this chapter must be raised in
his original, supplemental or amended application. Any ground finally
adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in
the proceeding that resulted in the conviction or sentence or in any other
proceeding the applicant has taken to secure relief, may not be the basis for a
subsequent application, unless the court finds a ground for relief asserted which
for sufficient reason was not asserted or was inadequately raised in the original,
supplemental or amended application.
S.C. Code Ann. § 17-27-90. Thus, “‘[a]ny issue which could have been raised in the initial state
PCR action cannot be raised in a second PCR action.’” Primus v. Padula, 555 F. Supp. 2d 596,
612 (D.S.C. 2008) (quoting Wilson v. Moore, 999 F. Supp. 783, 789 (D.S.C. 1998)). In this case,
Petitioner claims she has after-discovered evidence, which may be sufficient reason why the
evidence was not raised in the original application. In such an event, the claims may not be
The court finds that Petitioner’s motion for voluntary dismissal (ECF No. 30) should be
GRANTED. The motion to alter or amend the Report (ECF No. 31), as well as Respondent’s
motion for summary judgment (ECF No. 18), are DENIED as MOOT. The court MOOTS the
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
July 26, 2016
Anderson, South Carolina
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