Millen v. State of South Carolina
Filing
5
REPORT AND RECOMMENDATION recommending 1 Petition for Writ of Habeas Corpus filed by Kevin D Millen be dismissed without prejudice. Objections to R&R due by 2/22/2007. Signed by Judge William M Catoe on 2/1/07. (ladd, ) Additional attachment(s) added on 2/2/2007 (dnap, ).
Millen v. State of South Carolina
Doc. 5
6:07-cv-00277-CMC
Date Filed 02/01/2007
Entry Number 5
Page 1 of 13
U N IT E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA
K e v in D. M ille n , # 232987, aka Kevin Don Millen,
) ) ) ) P et i t i on e r , ) ) vs . ) ) S t a te of South Carolina; and ) L e V e r n Cohen, W ard en of Ridgeland Correctional ) Institution, ) ) R e s p on d en t s . _ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ )
C/A No. 6:07-0277-CM C -W M C
R e p o rt and Recommendation
Background of this Case
The petitioner is an inmate at the Ridgeland Correctional Institution of the South Carolina Department of Corrections (SCDC). On November 15, 2 0 0 5, in the Court of General Sessions for Colleton County, the petitioner pled guilty to common law robbery and was sentenced to fifteen (15) years in prison. No direct appeal was filed. The petitioner's answers to Questions 10 and 11 of the Section 2254 petition (Entry No.1) reveal that he has not f i led any other applications, petitions, or motions with respect to his conviction. The petitioner raises various grounds in the petition: ineffective
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assistance of counsel; lack of subject matter jurisdiction; violation of due process; and newly-discovered evidence.
Discussion
Under established local procedure in this judicial district, a careful review has been made of the pro se petition pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review1 has been conducted in light of the f ollowing precedents: Denton v. Hernandez, 504 U.S. 25, 118 L.Ed.2d 340, 112 S.Ct. 1728, 1992 U.S. LEXIS® 2689 (1992); Neitzke v. Williams, 490 U.S. 319, 324-325, 104 L.Ed.2d 338, 109 S.Ct. 1827, 1989 U.S. LEXIS® 2231 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951, 1995 U.S.App. LEXIS® 26108 (4th Cir. 1995)(en banc), cert. denied, 516 U.S. 1177, 134 L.Ed.2d 219, 116 S.Ct. 1273 (1996); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); and
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (DSC), th e undersigned is authorized to review such complaints for relief and submit findings and rec om m en d ation s to the District Court. 2
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Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).2 Pro se complaints and petitions are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert. denied, Leeke v. Gordon, 439 U.S. 970 (1978), and a federal district court is charged with liberally construing a complaint or petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); and Cruz v. Beto, 405 U.S. 319 (1972). When a federal court is evaluating a pro se complaint or petition, the plaintiff's or petitioner's allegations are assumed to be true. Fine v. City of New York, 529 F.2d 70, 74 (2nd Cir. 1975). Even under this less stringent standard, the petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege f acts which set forth a claim currently cognizable in a federal district court. W eller v. Department of Social Services, 901 F.2d 387, 1990 U.S.App. LEXIS® 6120 (4th Cir. 1990).
Boyce has been held by some authorities to have been abrogated in part, on other grounds, b y Neitzke v. W illiam s , 490 U.S. 319 (1989)(insofar as Neitzke establishes that a complaint th at fails to state a claim, under Federal Rule of Civil Procedure 12(b)(6), does not by definition m erit sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) [formerly 28 U.S.C. § 1915(d)], as "frivolous"). 3
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W ith respect to his conviction and sentence, the petitioner's sole f ederal remedies are a writ of habeas corpus under either 28 U.S.C. § 2254 or 28 U.S.C. § 2241, which remedies can be sought only after the petitioner has exhausted his state court remedies. "It is the rule in this country that assertions of error in criminal proceedings must first be raised in state court i n order to form the basis for relief in habeas. Claims not so raised are considered defaulted." Beard v. Green, 523 U.S. 371, 375, 140 L.Ed.2d 529, 118 S.Ct. 1352, 1998 U.S. LEXIS® 2465 (1998)(citing Wainwright v. Sykes, 433 U.S. 72 (1977)). See also 28 U.S.C. § 2254(b); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-491 (1973); Picard v. Connor, 404 U.S. 270 (1971); Schandelmeier v. Cunningham, 819 F.2d 52, 53, 1986 U.S. App. LE XIS® 36955 (3rd Cir. 1986)(exhaustion required under § 2241). The exhaustion requirements under § 2254 are fully set forth in Matthew s v. Evatt, 105 F.3d 907, 1997 U.S.App. LEXIS® 1319 (4th Cir.), cert. denied, Matthews v. Moore, 522 U.S. 833, 139 L.Ed.2d 57, 118 S.Ct. 102, 1997 U.S. LEXIS® 4939 (1997): In the interest of giving state courts the first opportunity to consider alleged constitutional errors occurring in a defendant's state trial and sentencing, a § 2254 petitioner is required to "exhaust" all state court remedies before a federal district court can entertain his claims. Thus, a federal habeas court may
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consider only those issues which have been "fairly presented" to the state courts. . . . To satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court. The burden of proving that a claim has been exhausted lies with the pe tit io ne r. Th e exhaustion requirement, though not jurisdictional, is strictly enforced[.] Matthew s v. Evatt, 105 F.3d at 910-911 (citations omitted from quotation). In any event, it is clear that the petitioner has not exhausted his state court remedies. Exhaustion of state court remedies is required by 28 U.S.C. § 2254(b)(1)(A). Although the time for the petitioner to file a direct appeal in his criminal case has obviously expired, the petitioner can file an application f or post-conviction relief. See § 17-27-10, et seq., South Carolina Code of Laws. The applicant may allege constitutional violations in a post-conviction proceeding but only if the issue could not have been raised by direct appeal. Gibson v. State, 329 S.C. 37, 41, 495 S.E.2d 426, 428, 1998 S.C. LEXIS® 6 (1998)(citing S.C. Code Ann. § 17-27-20(a)(1), (b); and Simmons v. State, 264 S.C. 417, 215 S.E.2d 883 (1975)). "Exhaustion includes filing of an application, the rendering of an order adjudicating the issues, and petitioning f or, or knowingly waiving, appellate review." Gibson v. State, supra, 329 S.C. at 42, 495 S.E.2d at 428. The Supreme Court of South Carolina has
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sp e cif ically stated: "[W]hen the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies." See In Re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 321 S.C. 563, 564, 471 S.E.2d 454 (1990); and State v. McKennedy, 348 S.C. 270, 559 S.E.2d 850, 2002 S.C. LEXIS® 26 (2002).3 Applications for post-conviction relief are to be filed in the Court of Common Pleas for the county in which a South Carolina prisoner was convicted in a Court of General Sessions. In an application for post-
conviction relief, the petitioner can raise issues relating to ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984); and Brightman v. State, 336 S.C. 348, 520 S.E.2d 614, 1999 S.C. LEXIS® 164 (1999).
W h er e a habeas petitioner has failed to exhaust his state remedies and the state court w ou ld now find his claims procedurally barred, further exhaustion is not required. See C olem an v. Thompson, 501 U.S. 722, 735 n. 1, 1991 U.S. LEXIS® 3640 (1991); Breard v. P ru ett, 134 F.3d 615, 619, 1998 U.S.App. LEXIS® 892 (4th Cir. 1998). However, the federal c ou r t is precluded from hearing a procedurally defaulted claim unless the petitioner "
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