Dizzley v. Cartledge
ORDER RULING ON REPORT AND RECOMMENDATION adopts 10 Report and Recommendation. The Court DISMISSES Petitioner 2254 petition without prejudice. The Court DENIES a certificate of appealability. Signed by Honorable R Bryan Harwell on 5/26/2017. (gpre, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Terron Gerhard Dizzley,
Leroy Cartledge, Warden,
Civil Action No.: 8:17-cv-00213-RBH
Petitioner Terron Gerhard Dizzley, a state prisoner proceeding pro se, initiated this action by
filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See ECF No. 1. The matter
is now before the Court for review of the Report and Recommendation (R & R) of United States
Magistrate Judge Jacquelyn D. Austin.1 See R & R [ECF No. 10]. The Magistrate Judge recommends
summarily dismissing Petitioner’s § 2254 petition without prejudice and without requiring Respondent
to file an answer or return. R & R at 1, 4. Petitioner has filed objections to the R & R. See Pet.’s Objs.
[ECF No. 15].
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it 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).
This matter was automatically referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and
Local Rule 73.02(B)(2)(c) for the District of South Carolina.
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when
a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199-200 (4th Cir. 1983).
Petitioner raises a single ground for habeas relief in his § 2254 petition, alleging his appellate
counsel was ineffective for withdrawing his direct appeal. ECF No. 1 at 5. The Magistrate Judge
recommends summarily dismissing Petitioner’s § 2254 petition without prejudice because he has not
yet exhausted his state remedies.3 R & R at 2.
In his objections, Petitioner acknowledges he “may seek a writ of habeas corpus under 28 U.S.C.
§ 2254 only after he has exhausted his state court remedies,” but he contends “special
circumstances . . . exist in this case” that allow him to bypass the exhaustion requirement. Pet.’s Objs.
at 1-3. Specifically, Petitioner appears to argue that he should be able to proceed with this § 2254
The R & R thoroughly summarizes the background of this case, with applicable dates and citations to the
record. See R & R at 1-3.
The M agistrate Judge’s R & R sets forth the correct law pertaining to the exhaustion requirements of 28
U.S.C. § 2254, and the Court adopts and incorporates that law by reference without repeating it here. See R & R at
proceeding because his appellate counsel withdrew his direct appeal,4 an action that Petitioner claims
was a “defect inconsistent with rudimentary demands of fair procedure or a fundamental miscarriage
of justice.”5 Id.
The Court agrees with the Magistrate Judge that Petitioner’s § 2254 petition must be summarily
dismissed. A state prisoner seeking relief under 28 U.S.C. § 2254 “must exhaust his remedies in state
court” and must “give the state courts a full and fair opportunity to resolve federal constitutional claims
before those claims are presented to the federal courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 842, 845
(1999) (emphasis added); see 28 U.S.C. § 2254(b) (exhaustion requirement). As the Magistrate Judge
notes, Petitioner’s state post-conviction relief (“PCR”) action is still pending.6 Although Petitioner
alleges his appellate counsel was ineffective for withdrawing his direct appeal, he has not yet exhausted
Petitioner attached to his objections a copy of a letter from his appellate counsel, Jeremy A. Thompson,
dated M ay 15, 2015. See ECF No. 15-1. In this letter, Mr. Thompson states that he was retained to represent
Petitioner in his direct appeal before the South Carolina Court of Appeals, and that he would review Petitioner’s trial
transcript and write an opinion letter after which Petitioner would have to decide whether to pursue the direct appeal
or abandon it and pursue PCR relief. Id. at 2. Mr. Thompson explains he had “been retained to handle either action,
depending on [Petitioner’s] choice.” Id.
Additionally, the Court has reviewed the records of the South Carolina Court of Appeals. Those records
indicate Mr. Thompson filed a motion to withdraw Petitioner’s direct appeal, along with an affidavit signed by
Petitioner indicating Petitioner’s consent to withdrawing the appeal and having it dismissed with prejudice. The
South Carolina Court of Appeals granted the motion and dismissed the appeal on July 16, 2015. See Dizzley v. State,
No. 2014-001339, docket available at http://ctrack.sccourts.org/public/caseView.do?csIID=57006 (last visited May
23, 2017). See generally Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“[F]ederal courts,
in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal
judicial system, if those proceedings have a direct relation to matters at issue.”).
Additionally, Petitioner filed a document entitled “Amendment to the Habeas Corpus,” whereby he seeks
to amend the allegation of ineffective assistance of appellate counsel in his § 2254 petition. See ECF No. 16.
Because the Court finds Petitioner has failed to exhaust his state remedies, the Court notes amendment would be
futile. See United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000) (“Under Rule 15(a) leave to amend shall be
given freely, absent bad faith, undue prejudice to the opposing party, or futility of am endm ent.” (emphasis added));
see generally Mayle v. Felix, 545 U.S. 644, 654–55 (2005) (recognizing Rule 15(a) is applicable to § 2254 petitions).
http://publicindex.sccourts.org/Georgetown/PublicIndex/PISearch.aspx (last visited May 23, 2017). The records
from Petitioner’s state PCR action show that the PCR court relieved Mr. Thompson as counsel and appointed him
new counsel (James K. Falk). On May 4, 2017, Petitioner filed an amended PCR application alleging ineffective
assistance of appellate counsel by Mr. Thompson.
his state PCR remedies on this or any other claim. Thus, the instant § 2254 petition is premature and
subject to summary dismissal. Accordingly, the Court overrules Petitioner’s objections and will dismiss
his § 2254 petition without prejudice for failure to exhaust state remedies.
Certificate of Appealability
A certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating reasonable jurists would find the court’s assessment
of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable and that
the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85.
In this case, the Court concludes Petitioner has not made the requisite showing of “the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
Based upon the foregoing, the Court overrules Petitioner’s objections and adopts and
incorporates by reference the R & R [ECF No. 10]. Accordingly, the Court DISMISSES Petitioner’s
§ 2254 petition without prejudice and without requiring Respondent to file an answer or return. The
Court DENIES a certificate of appealability because Petitioner has not made “a substantial showing
of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
Florence, South Carolina
May 26, 2017
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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