Young v. State of South Carolina

Filing 59

ORDER RULING ON REPORT AND RECOMMENDATION 45 . adopts the Report (ECF No. 45) and incorporates it herein. Accordingly, Respondents motion for summary judgment (ECF No. 11) is DENIED, Respondents motion to dismiss for fa ilure to exhaust state remedies (ECF No. 15) is GRANTED without prejudice, Petitioners motion for default judgment (ECF No. 19) is DENIED, and Petitioners motion to stay proceedings (ECF No. 22) is DENIED. Further, Petitioners motion for ex tension of time to file a reply (ECF No. 47) is GRANTED and Petitioners motion to amend his complaint (ECF No. 39) is hereby DENIED as moot. A certificate of appealability is denied. Signed by Honorable Timothy M Cain on 9/19/2017. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Derrick Antron Young,
Petitioner,
v.
Warden of Evans Correctional
Institution,
Respondent.

)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 6:16-2849-TMC

ORDER

Petitioner Derrick Antron Young (“Petitioner”), a state prisoner proceeding pro se and in
forma pauperis, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In
accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter was
referred to a magistrate judge for pretrial handling. Before the court is the magistrate judge’s
Report and Recommendation (“Report”), recommending that Respondent’s motion for summary
judgment (ECF No. 11) be denied, Respondent’s motion to dismiss for failure to exhaust state
remedies (ECF No. 15) be granted without prejudice, and Petitioner’s motions for default
judgment (ECF No. 19) and to stay proceedings (ECF No. 22) be denied. The Report further
recommends that adopting the Report renders moot Petitioner’s motion to amend his complaint
(ECF No. 39). Petitioner was advised of his right to file objections to the Report (ECF No. 45 at
12), and he filed timely objections. (ECF No. 50).
The Magistrate Judge makes only a recommendation to the court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The court is charged with making a de
novo determination of those portions of the Report to which specific objection is made, and the

1

court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate
Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). However, the court need
not conduct a de novo review when a party makes only “general and conclusory objections that
do not direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a
timely filed, specific objection, the Magistrate Judge’s conclusions are reviewed only for clear
error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
I. Background/Procedural History
The magistrate judge set forth the background and procedural history in his Report.
(ECF No. 45 at 1–8). Briefly, Petitioner, currently incarcerated at Evans Correctional Institution,
was indicted by a Greenville County Grand Jury for resisting arrest and assault; possession with
intent to distribute cocaine base; trafficking cocaine; and trafficking cocaine base. Id at 1.
Petitioner waived presentment on a charge of failure to stop for a blue light. Id.
On October 9, 2012, Petitioner, represented by retained counsel Christopher Posey, pled
guilty to all of the aforementioned charges.

Id.

Petitioner was sentenced to ten years

incarceration for resisting arrest with assault; thirteen years for possession with intent to
distribute cocaine base, second offense; thirteen years for trafficking cocaine (28–100 grams),
second offense; thirteen years for trafficking cocaine base (28–100 grams), first offense; and
three years for failure to stop for a blue light. Petitioner did not appeal his convictions or
sentences.
Petitioner filed an application for post-conviction relief (“PCR”) (2013-CP-23-4575) on
August 21, 2013. Id. at 2. After a hearing, the PCR court denied Petitioner relief in an order
filed November 17, 2014. Id at 2–3. Petitioner filed a timely appeal of the denial of his PCR

2

application.

Id. at 3.

On November 9, 2016, the South Carolina Supreme Court denied

Petitioner’s petition for a writ of certiorari. Id. The remittitur was filed December 15, 2016. Id.
Petitioner filed a second PCR application (2015-CP-23-5319) on August 27, 2015. Id.
On May 6, 2016, Petitioner filed a motion to consolidate the appeal in his first PCR action with
his second PCR application. Id. at 4. On May 19, 2016, the Supreme Court of South Carolina
dismissed Petitioner’s motion finding that no extraordinary reason existed to entertain it pursuant
to Key v. Currie, 406 S.E.2d 356 (S.C. 1991). Id. On August 9, 2016, the State filed its return
and motion to dismiss requesting that Petitioner’s second PCR application be summarily
dismissed because it was successive, untimely, and failed to make a prima facie showing of
newly discovered information. Id. On September 7, 2016, Petitioner filed objections. Id.
Petitioner’s second PCR application is presently pending in the Grenville County Court of
Common

Pleas.

See

Greenville

County

13th

Judicial

Circuit

Public

Index,

https://www2.greenvillecounty.org/SCJD/PublicIndex/PISearch.aspx (enter “Derrick Young”
and “search,” and click on “2015CP2305319”) (last checked September 19, 2017).1
Petitioner filed the instant habeas corpus petition on August 15, 2016, raising five
grounds for relief. (ECF No. 1). On October 19, Respondent filed a motion for summary
judgment (ECF No. 11), a motion to dismiss for failure to exhaust state remedies (ECF No. 19),
and a return and memorandum in support of the motion to dismiss (ECF No. 12). On October
24, 2016, Petitioner filed a motion for default judgment. (ECF No. 19). On November 4, 2016,
Petitioner filed a response in opposition to Respondent’s dispositive motions (ECF No. 21) and a

1

The Fourth Circuit held that “a court may properly take judicial notice of ‘matters of public record’ and other
information that, under Federal Rule of Evidence 201, constitute ‘adjudicative facts.’” Goldfarb v. Mayor & City
Council of Baltimore, 791 F.3d 500 (4th Cir. 2015); O’Tolle v. Northrop Grumman Corp., 499 F.3d 1218, 1225
(10th Cir. 2007) (“It is not uncommon for courts to take judicial notice of factual information found on the world
wide web.”); Jeandron v. Bd. of Regents of Univ. Sys. of Maryland, 510 F. App’x 223, 227 (4th Cir. 2013) (stating
the court may take judicial notice of information on a web site, “so long as the web site’s authenticity is not in
dispute.”).

3

motion to stay proceedings (ECF No. 22). On November 8, 2016, Respondent filed a reply to
Petitioner’s response to the motion to dismiss (ECF No. 23) and a response in opposition to
Petitioner’s motion to stay (ECF No. 24). On March 1, 2017, Petitioner filed a motion to amend
his petition (ECF No. 39) and Respondent filed a response in opposition on March 14, 2017
(ECF No. 40). Petitioner filed a motion for extension of time to file a reply on March 22, 2017
(ECF No. 47), which the court hereby grants, and a reply (ECF No. 49) on March 27, 2017,
which the court considers in its analysis below.
II. Discussion
In his report, the magistrate judge recommended that the court deny Respondent’s motion
for summary judgment (ECF No. 11) and grant Respondent’s motion to dismiss Petitioner’s
habeas petition without prejudice (ECF No. 15) for failure to exhaust state remedies because
Petitioner’s second PCR action remains pending in state court.

The magistrate judge

recommended that Petitioner’s motion to stay the instant petition (ECF No. 22) be denied
because, while the petition contains both exhausted and unexhausted claims, Petitioner failed to
make the requisite showings. See Rhines v. Weber, 544 U.S. 269, 278 (2005) (A district court
should stay, rather than dismiss a mixed petition “if the petitioner had good cause for his failure
to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics.”). Further, the magistrate judge
recommended Petitioner’s motion for entry of default (ECF No. 19) be denied because the
docket shows that Respondent timely filed a return and dispositive motions in the present action.
Finally, the magistrate judge noted that if the district court adopts the recommendation,
Petitioner’s motion to amend (ECF No. 39) will be rendered moot.

4

A. Objections
Neither party addressed the magistrate judge’s recommendations that Respondent’s
motion for summary judgment (ECF No. 11) and Petitioner’s motion for entry of default (ECF
No. 19) be denied.

Finding no clear error, the court adopts the magistrate judge’s

recommendation and denies Respondent’s motion for summary judgment (ECF No. 11) and
Petitioner’s motion for entry of default (ECF No. 19).
Petitioner raises four specific objections to the magistrate judge’s Report. First, he
asserts that the magistrate judge erred by finding that his second PCR application is proceeding
on its normal course without inordinate delay.

Petitioner does not dispute that his PCR

proceedings are ongoing. He claims that, at the time of his objections, there has been a nineteenmonth delay and argues that this constitutes an inordinate delay. (ECF No. 50 at 3).
“Before a federal court may grant habeas relief to a state prisoner, the prisoner must
exhaust his remedies in state court.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). “The
exhaustion requirement . . . is now codified at 28 U.S.C. § 2254(b)(1).” Id. (internal citations
omitted). “The exhaustion requirement . . . serves to minimize friction between our federal and
state systems of justice by allowing the State an initial opportunity to pass upon and correct
alleged violations of prisoners' federal rights.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981). “An
exception is made only if there is no opportunity to obtain redress in state court or if the
corrective process is so clearly deficient as to render futile any effort to obtain relief.” Id. “State
remedies may be rendered ineffective by inordinate delay or inaction in state proceedings.” Ward
v. Freeman, No. 94-6424, 1995 WL 48002, at *1 (4th Cir. Feb. 8, 1995) (unpublished).
As discussed above, Petitioner’s second PCR application (2015-CP-23-5319) was filed
on August 27, 2015. (ECF No. 45 at 3). On May 6, 2016, Petitioner filed a motion to
5

consolidate the appeal in his first PCR action with his second PCR application. Id. at 4. On May
19, 2016, the Supreme Court of South Carolina dismissed Petitioner’s motion. Id. On August 9,
2016, the State filed its return and motion to dismiss. Id. On September 7, 2016, Petitioner filed
objections. Petitioner’s second PCR application remains pending, however, the court agrees
with the magistrate judge that Petitioner’s PCR application is proceeding on its normal course
and that Petitioner has failed to show inordinate delay on the part of the State. (ECF No. 45 at
10). “Courts typically find an inordinate delay only when much longer periods of time have
passed [than 24 months].” Miller v. McFadden, C.A. No. 1:14-483-RBH, 2015 WL 846530, at
*2 (D.S.C. Feb. 26, 2015).
The court finds that the present delay does not rise to the level of an inordinate delay and
does not render Petitioner’s state court remedies ineffective. See Ward, 1995 WL 48002, at *1
(holding that fifteen-year delay rendered petitioner's state remedies ineffective and negated
exhaustion requirement); Miller, 2015 WL 846530 (finding no inordinate delay where the time
between when the petition was filed and when the state issued its Order of Dismissal was
approximately 24 months); Cobarruvias v. Cartledge, C.A. No. 4:12-3096-DCN-TER, 2012 WL
6772231, *2 (D.S.C. Nov. 2012) (finding that 22 months does not qualify as inordinate delay);
Straws v. Padula, No. 4:08–02714–HFF–TER, 2008 WL 4180308 (D.S.C. Sept. 3, 2008) (delay
of twenty six months not inordinate); see also Lee v. Stickman, 357 F.3d 338, 341–42 (3rd Cir.
2004) (holding that an 8-year delay in reaching the merits of a post-conviction petition constitute
inordinate delay); Mathis v. Hood, 851 F.2d 612, 612–13 (2d Cir. 1988) (holding five and onehalf year delay rendered state remedies ineffective); Wojtczak v. Fulcomer, 800 F.2d 353, 354
(3d Cir. 1986) (holding thirty-three month delay rendered state remedy ineffective); cf. Walkup v.

6

Haines, 2005 WL 2428163, *3 (S.D. W.Va. 2005) (The length of delay “is not a determinative
factor when some of the delay is attributable to petitioner.”).
Furthermore, this court is restrained by the principles of comity. See Castille v. Peoples,
489 U.S. 346, 349 (1989) (“The exhaustion requirement . . . is grounded in principles of comity
and reflects a desire to ‘protect the state courts' role in the enforcement of federal law.” ’
(quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)). The exhaustion requirement of section 2254
“creates a ‘strong presumption in favor of requiring the prisoner to pursue his available state
remedies.” ’ Id. (quoting Granberry v. Greer, 481 U.S. 129, 131 (1987)). Accordingly, the court
overrules Petitioner’s first objection.
Second, Petitioner asserts that his PCR counsel was ineffective for failing to file for a
rehearing pursuant to S.C. R. Civ. P. 59(a) because doing so would have allegedly saved
petitioner from filing his second PCR application.

However, “[t]he ineffectiveness or

incompetence of counsel during Federal or State collateral post-conviction proceedings shall not
be a ground for relief in a proceeding arising under section 2254.” 28 U.S.C. 2254(i); see also
Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012) (acknowledging that Ҥ 2254(i) precludes [a
habeas petition] from relying on the ineffectiveness of his postconviction attorney as a ‘ground
for relief”). See generally Bryant v. Maryland, 848 F.2d 492, 494 (4th Cir. 1988) (claims of
error occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas
relief); Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (errors in state post-conviction
proceedings are collateral to the conviction and sentence and do not give rise to a claim for
federal habeas relief).
In Coleman v. Thompson, 501 U.S. 722, 752 (1991), the United States Supreme Court
held that any errors of PCR counsel cannot serve as a basis for cause to excuse a petitioner's

7

procedural default of a claim. In Martinez v. Ryan, 132 S. Ct. 1309 (2012), as cited by Petitioner
in his objections, the Supreme Court established a “limited qualification” and held that
inadequate assistance of counsel at initial collateral review proceedings may establish cause for a
prisoner's procedural default of a claim of ineffective assistance of trial counsel.
However, the Martinez exception is inapplicable here. Martinez, 132 S. Ct. 1309. In
Martinez, the question before the court was “whether a federal habeas court may excuse a
procedural default on an ineffective-assistance claim when the claim was not properly presented
in state court due to an attorney's errors in an initial-review collateral proceeding.” Id. at 1313.
Such a question is not presently before the court as the PCR court addressed Petitioners
ineffective assistance claim on the merits in his first PCR application (ECF No. 12-2) and the
instant Report did not find that Petitioner procedurally defaulted on his claim of ineffective
assistance of plea counsel. Accordingly, Petitioner’s second objection lacks merit.
Third, as the court can glean, Petitioner asserts that the magistrate judge erred by finding
that Petitioner failed to exhaust state remedies because his claims in his second PCR application
were already litigated in his first PCR action and because federal habeas court allows the
introduction of newly discovered evidence. However, it is not for this court to decide whether
Petitioner’s second PCR application, before the state court, is repetitive of his first PCR
application. This court is restrained by the principles of exhaustion and comity. See Castille,
489 U.S. at 349 (“The exhaustion requirement . . . is grounded in principles of comity and
reflects a desire to ‘protect the state courts' role in the enforcement of federal law.” ’ (quoting
Lundy, 455 U.S. at 518). Further, Petitioner cites Winston v. Kelly, for the principal that new
supplemental evidence that does not “fundamentally alter the legal claim already considered by
the state courts” may be properly be considered by a federal habeas court. 592 F.3d 535, 549

8

(4th Cir. 2010).

However, this principal does not excuse the state remedy exhaustion

requirement. Id.2 Thus, the court declines to undertake a habeas action by Petitioner until the
available state court remedies are exhausted. See O'Sullivan, 526 U.S. at 842.
Fourth, Petitioner objects to the magistrate judge’s recommendation that his motion to
stay be dismissed. (ECF No. 50 at 8). Petitioner asserts that his failure to exhaust was caused by
dilatory litigation tactics by the Respondent.

He asserts that Respondent utilized dilatory

litigation tactics by taking approximately one year to respond to Petitioner’s second PCR
application and by moving to dismiss Petitioner’s second PCR application (ECF No. 12-10) and
habeas petition (ECF No. 15). However, his argument fails to demonstrate any dilatory tactics of
the Respondent.

First, statutory requirements provide that “[w]ithin thirty days after the

docketing of the [PCR] application, or within any further time the court may fix, the State shall
respond by answer or by motion.” S.C. Code § 17–27–70. “Compliance with the thirty day time
limit prescribed by the statute is . . . not mandatory, . . . but discretionary with the trial court.”
Guinyard v. State, 195 S.E.2d 392, 394 (S.C. 1973).

Petitioner has not demonstrated that

Respondent exceeded the appropriate amount of time to respond.

Petitioner also fails to

demonstrate that the Respondent or state court has caused inordinate delay in the processing of
Petitioner’s second PCR application, as discussed above. See, e.g., Ward, 1995 WL 48002, at
*1; Straws, 2008 WL 4180308; Lee, 357 F.3d at 341–42; Miller, 2015 WL 846530. Further,
Petitioner fails to offer any support for his conclusory argument that Petitioner’s motions to
dismiss, properly filed in the second PCR action (ECF No. 12-10) and in this habeas action (ECF

2

Petitioner also cites to the principal articulated in Monroe v. Angelone, that “[the Antiterrorism and Effective Death
Penalty Act of 1996’s] deference requirement does not apply when a claim made on federal habeas review is
premised on Brady material that has surfaced for the first time during federal proceedings.” 323 F.3d 286, 297 (4th
Cir. 2003). However, this principal does not excuse the state remedy exhaustion requirement and is thus irrelevant
because Petitioner’s second PCR application remains pending.

9

No. 15), constitute dilatory tactics. Accordingly, the court adopts the magistrate judge’s Report
and finds that Petitioner’s failure to exhaust state court remedies warrants dismissal of this
habeas petition without prejudice.
B. Motion to Amend
In his report the magistrate judge stated that if the district court adopts the Report,
Petitioner’s motion to amend (ECF No. 39)3 will be rendered moot. As shown by Respondent in
his response to Petitioner’s motion to amend (ECF No. 40 at 2) and conceded by Petitioner in his
reply (ECF No. 49 at 5), Petitioner’s second PCR application remains pending in state court.
Accordingly, based on the foregoing analysis, because the court is dismissing Petitioner’s action
for failing to exhaust state court remedies, Petitioner’s motion to amend and proposed
amendments are presently rendered moot.
III. Conclusion
The court has thoroughly reviewed the Report of the magistrate judge and the filings in
this case. For the reasons set forth above and by the magistrate judge, the court overrules
Petitioner’s objections and hereby adopts the Report (ECF No. 45) and incorporates it herein.
Accordingly, Respondent’s motion for summary judgment (ECF No. 11) is DENIED,
Respondent’s motion to dismiss for failure to exhaust state remedies (ECF No. 15) is
GRANTED without prejudice, Petitioner’s motion for default judgment (ECF No. 19) is
DENIED, and Petitioner’s motion to stay proceedings (ECF No. 22) is DENIED. Further,
Petitioner’s motion for extension of time to file a reply (ECF No. 47) is GRANTED and
Petitioner’s motion to amend his complaint (ECF No. 39) is hereby DENIED as moot.

3

Petitioner’s proposed amended petition adds factual allegations to the five grounds alleged in his original petition
and three additional grounds.

10

Additionally, a certificate of appealability will not issue to a prisoner seeking habeas
relief absent “a substantial showing of the denial of a constitutional right.”

28 U.S.C. §

2253(c)(2). A prisoner satisfies this standard by demonstrating that reasonable jurists would find
both that his constitutional claims are debatable and that any dispositive procedural rulings by
the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336
(2003); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the court finds that the
petitioner has failed to make a substantial showing of the denial of a constitutional right.
Accordingly, the court declines to issue a certificate of appealability.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
September 19, 2017

11