Medows v. South Carolina, State of

Filing 4

REPORT AND RECOMMENDATIONS recommending 1 Petition for Writ of Habeas Corpus filed by Steven Medows, be dismissed without prejudice and without issuance and service of process upon the respondents. Objections to R&R due by 3/17/2006. Signed by Judge Bruce Howe Hendricks on 2/28/06. (kmca)

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Medows v. South Carolina, State of Doc. 4 8:06-cv-00313-HFF Date Filed 02/28/2006 Entry Number 4 Page 1 of 6 U N I T E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA S te v e n Medows, P e t it io n e r , vs. S ta te of South Carolina, R e sp o n d e n t( s) . ) C/A No. 8:06-313-HFF-BHH ) ) ) ) ) R e p o rt and Recommendation ) ) ) ___________________________________________ P la in tif f , a pre-trial detainee, has filed this matter pursuant to 28 U.S.C. § 2241. He alleges h e has been detained at the Lexington County Detention Center since January 16, 2004 "without a b o n d or a court date". See Complaint @ 1. Plaintiff alleges that he is innocent of the crimes for w h ic h he has been charged. He states that pre-trial discovery materials support his innocence. He a s k s that his right to a Speedy Trial be enforced. Under established local procedure in this judicial district, a careful review has been made of th e pro se petition pursuant to the procedural provisions of 28 U.S.C. § 1915; 28 U.S.C. § 1915A; th e Prison Litigation Reform Act; and the Anti-Terrorism and Effective Death Penalty Act of 1996. T h e review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 2 5 , (1992); Neitzke v. Williams, 490 U.S. 319, 324-325, (1989); Haines v. Kerner, 404 U.S. 519 (1 9 7 2 ); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951, (4th Cir. 1995)(en banc), c e rt. denied, Nasim v. Warden, Maryland House of Correction, 516 U.S. 1177 (1996); Todd v. B a s k e rv ille , 712 F.2d 70 (4th Cir. 1983); and Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979). Pro 1 8:06-cv-00313-HFF Date Filed 02/28/2006 Entry Number 4 Page 2 of 6 s e petitions are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 5 7 4 F.2d 1147, 1151 (4th Cir.), cert. denied, Leeke v. Gordon, 439 U.S. 970 (1978), and a federal d is tric t court is charged with liberally construing a complaint or petition filed by a pro se litigant to a llo w the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); a n d Cruz v. Beto, 405 U.S. 319 (1972). When a federal court is evaluating a pro se complaint or p e titio n , the plaintiff's or petitioner's allegations are assumed to be true. Fine v. City of New York, 5 2 9 F.2d 70, 74 (2nd Cir. 1975). Even under this less stringent standard, this petition is subject to s u m m a r y dismissal because the petitioner has not exhausted his state remedies. The requirement o f liberal construction does not mean that the court can ignore a clear failure in the pleading to a lle g e facts which set forth a claim currently cognizable in a federal district court. Weller v. D ep artm en t of Social Services, 901 F.2d 387, (4th Cir. 1990). Since the petitioner is a pre-trial detainee, his exclusive federal remedy is to file a petition f o r a writ of habeas corpus under 28 U.S.C. § 2241(c)(3), after he fully exhausts his state remedies. A lth o u g h 28 U.S.C. § 2241 contains no express reference to exhaustion of state remedies, courts h a v e held that exhaustion is necessary under § 2241 also. See, e.g., Braden v. 30th Judicial Circuit C o u rt, 410 U.S. 484, 490-491 (1973); and Moore v. De Young, 515 F.2d 437, 442-443 (3rd Cir. 1 9 7 5 ). Hence, pre-trial detainees in state criminal proceedings must exhaust their state remedies b e f o re seeking federal habeas corpus relief. Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir.), cert. d e n ie d , 449 U.S. 1014 (1980). Cf. Hamlin v. Warren, 664 F.2d 29, 30-32 & n. * (4th Cir. 1981), c e rt. denied, 455 U.S. 911 (1982). 2 8:06-cv-00313-HFF Date Filed 02/28/2006 Entry Number 4 Page 3 of 6 T h e Federal Speedy Trial Act, 18 U.S.C. § 3116 et seq., applies to criminal prosecutions b ro u g h t by the United States, and is not applicable to prosecutions by a State. See, e.g., United S ta te s v. Hall, 1994 WESTLAW® 544514 (D.Kan., September 13, 1994); United States v. Hanks, 1 9 9 4 WESTLAW® 544516 (D.Kan., September 13, 1994); and United States v. James, 861 F . Supp. 151, (D.D.C. 1994). T h e Sixth Amendment, which, inter alia, provides that criminal defendants have the right to a speedy and public trial, was made applicable to the States in 1948. See In Re Oliver, 333 U.S. 257, 2 7 3 (1948). Even so, in light of the petitioner's failure to exhaust his state remedies, it is u n n e c es s a ry for this court to conduct a full analysis of the four-part "speedy trial" test set forth by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972). A b s e n t extraordinary circumstances, federal courts are not authorized to interfere with a S ta te 's pending criminal proceedings. See, e.g., Younger v. Harris, 401 U.S. 37, 44 (1971); Taylor v . Taintor, 83 U.S. (16 Wall.) 366, 370 & n. 8 (1873);* Harkrader v. Wadley, 172 U.S. 148, 169-170 (1 8 9 8 ); and Cinema Blue of Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 50-53 (4th Cir. 1989), cert. d e n ie d , 494 U.S. 1030, (1990). In Cinema Blue of Charlotte, Inc. v. Gilchrist, the United States C o u rt of Appeals for the Fourth Circuit ruled that federal district courts should abstain from c o n stitu tio n a l challenges to state judicial proceedings, no matter how meritorious, if the federal Although the Supreme Court of the United States has not overruled Taylor v. Taintor, an unrelated portion of the decision in Taylor v. Taintor, which concerned the right of sureties to apprehend principals, has been superannuated by statute in Texas. See Green v. State, 829 S.W.2d 222, 223, (Tex. Crim. App. 1992)("However, Taylor is not the law in Texas."), affirming Green v. State, 785 S.W.2d 955, (Tex. App. Fort Worth 1990). 3 * 8:06-cv-00313-HFF Date Filed 02/28/2006 Entry Number 4 Page 4 of 6 c la im s have been or could be presented in an ongoing state judicial proceeding. Cinema Blue of C h a rlo tte , Inc. v. Gilchrist, supra, 887 F.2d at 52. Moreover, the Anti-Injunction Act, 28 U.S.C. § 2283, expressly prohibits this court from enjoining such proceedings. See also Bonner v. Circuit C o u rt of St. Louis, 526 F.2d 1331, 1336 (8th Cir. 1975)(en banc), cert. denied, 424 U.S. 946 (1976). In Bonner v. Circuit Court of St. Louis, the United States Court of Appeals for the Eighth Circuit p o in te d out that federal constitutional claims are cognizable in both state courts and in federal c o u r ts : "Congress and the federal courts have consistently recognized that federal courts should p e rm it state courts to try state cases, and that, where constitutional issues arise, state court judges a r e fully competent to handle them subject to Supreme Court review." Cf. District of Columbia C o u rt of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Gurley v. Superior Court of Mecklenburg C o u n ty, 411 F.2d 586, 587-588 & nn. 2-4 (4th Cir. 1969)(federal courts may not issue writs of m an d am u s against state courts); and Craigo v. Hey, 624 F. Supp. 414 (S.D.W.Va. 1985). If the petitioner is convicted in his pending criminal case, he has the remedy of filing a direct a p p e al. If his direct appeal is unsuccessful, the petitioner can file an application for post-conviction re lie f . Moreover, if a South Carolina prisoner's application for post-conviction relief is denied or d i s m i s s e d by a Court of Common Pleas, he or she can file an appeal in that post-conviction case. S e e § 17-27-100, South Carolina Code of Laws; and Knight v. State, 284 S.C. 138, 325 S.E.2d 535 (19 8 5 ). I t is well settled that a direct appeal is a viable state court remedy. Secondly, the United S tate s Court of Appeals for the Fourth Circuit has held that South Carolina's Uniform Post- 4 8:06-cv-00313-HFF Date Filed 02/28/2006 Entry Number 4 Page 5 of 6 C o n v ic tio n Procedure Act, which is currently codified at § 17-27-10 et seq., South Carolina Code o f Laws, is also a viable state-court remedy. See Miller v. Harvey, 566 F.2d 879, 880-881 (4th Cir. 1 9 7 7 ), cert. denied, 439 U.S. 838 (1978); and Patterson v. Leeke, 556 F.2d 1168, 1170-1173 & n. 1 (4 th Cir.), cert. denied, 434 U.S. 929 (1977). R E C O M M E N D A T IO N A c c o rd in g ly, it is recommended that the petition in the above-captioned case be dismissed w ith o u t prejudice and without issuance and service of process upon the respondent. See Allen v. P e rin i, 424 F.2d 134, 141 (6th Cir.)(federal district courts have duty to screen petitions and eliminate b u rd e n placed on respondents caused by ordering an unnecessary answer or return), cert. denied, 4 0 0 U.S. 906 (1970); Baker v. Marshall, 1995 WESTLAW® 150451 (N.D.Cal., March 31, 1 9 9 5 )(" T h e District Court may enter an order for the summary dismissal of a petition if it plainly a p p e ars from the face of the petition and any exhibits annexed to it that the petitioner is not entitled t o relief in this Court."); and the Anti-Terrorism and Effective Death Penalty Act of 1996. Cf. G r a n b e r ry v. Greer, 481 U.S. 129, 135 & n. 7 (1987); and Aubut v. Maine, 431 F.2d 688, 689 (1st C ir. 1970). Respectfully submitted, G re e n v ille , South Carolina S/Bruce H. Hendricks United States Magistrate Judge F e b ru a ry 28, 2006 5 8:06-cv-00313-HFF Date Filed 02/28/2006 Entry Number 4 Page 6 of 6 T h e petitioner's attention is directed to the important notice on the next page. Notice of Right to File Objections to Magistrate Judge's "Report and Recommendation" & The Serious Consequences of a Failure to Do So The parties are hereby notified that any objections to the attached Report and Recommendation (or Order and Recommendation) must be filed within ten (10) days of the date of service. 28 U.S.C. § 636 and Fed. R. Civ. P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three days for filing by mail. Fed. R. Civ. P. 6. A magistrate judge makes only a recommendation, and the authority to make a final determination in this case rests with the United States District Judge. See Mathews v. Weber, 423 U.S. 261, 270-271 (1976); and Estrada v. Witkowski, 816 F. Supp. 408, 410, 1993 U.S.Dist. LEXIS® 3411 (D.S.C. 1993). During the ten-day period for filing objections, but not thereafter, a party must file with the Clerk of Court specific, written objections to the Report and Recommendation, if he or she wishes the United States District Judge to consider any objections. Any written objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. See Keeler v. Pea, 782 F. Supp. 42, 43-44, 1992 U.S.Dist. LEXIS® 8250 (D.S.C. 1992); and Oliverson v. West Valley City, 875 F. Supp. 1465, 1467, 1995 U.S.Dist. LEXIS® 776 (D.Utah 1995). Failure to file written objections shall constitute a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the United States District Judge. See United States v. Schronce, 727 F.2d 91, 94 & n. 4 (4th Cir.), cert. denied, Schronce v. United States, 467 U.S. 1208 (1984); and Wright v. Collins, 766 F.2d 841, 845-847 & nn. 1-3 (4th Cir. 1985). Moreover, if a party files specific objections to a portion of a magistrate judge's Report and Recommendation, but does not file specific objections to other portions of the Report and Recommendation, that party waives appellate review of the portions of the magistrate judge's Report and Recommendation to which he or she did not object. In other words, a party's failure to object to one issue in a magistrate judge's Report and Recommendation precludes that party from subsequently raising that issue on appeal, even if objections are filed on other issues. Howard v. Secretary of HHS, 932 F.2d 505, 508-509, 1991 U.S.App. LEXIS® 8487 (6th Cir. 1991). See also Praylow v. Martin, 761 F.2d 179, 180 n. 1 (4th Cir.)(party precluded from raising on appeal factual issue to which it did not object in the district court), cert. denied, 474 U.S. 1009 (1985). In Howard, supra, the Court stated that general, non-specific objections are not sufficient: A general objection to the entirety of the [magistrate judge's] report has the same effects as would a failure to object. The district court's attention is not focused on any specific issues for review, thereby making the initial reference to the [magistrate judge] useless. * * * This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrates Act. * * * We would hardly countenance an appellant's brief simply objecting to the district court's determination without explaining the source of the error. Accord Lockert v. Faulkner, 843 F.2d 1015, 1017-1019 (7th Cir. 1988), where the Court held that the appellant, who proceeded pro se in the district court, was barred from raising issues on appeal that he did not specifically raise in his objections to the district court: Just as a complaint stating only 'I complain' states no claim, an objection stating only 'I object' preserves no issue for review. * * * A district judge should not have to guess what arguments an objecting party depends on when reviewing a [magistrate judge's] report. See also Branch v. Martin, 886 F.2d 1043, 1046, 1989 U.S.App. LEXIS® 15,084 (8th Cir. 1989)("no de novo review if objections are untimely or general"), which involved a pro se litigant; and Goney v. Clark, 749 F.2d 5, 7 n. 1 (3rd Cir. 1984)("plaintiff's objections lacked the specificity to trigger de novo review"). This notice, hereby, apprises the plaintiff of the consequences of a failure to file specific, written objections. See Wright v. Collins, supra; and Small v. Secretary of HHS, 892 F.2d 15, 16, 1989 U.S.App. LEXIS® 19,302 (2nd Cir. 1989). Filing by mail pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections addressed as follows: Larry W. Propes, Clerk United States District Court Post Office Box 10768 Greenville, South Carolina 29603 6

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