Foster v. State of South Carolina, The

Filing 42

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 25 Motion for Summary Judgment. Petitioners habeas petition is DISMISSED without prejudice. The court declines to issue a certificate of appealability. Signed by Honorable Timothy M Cain on 8/17/2018.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Robert Lee Foster,
Plaintiff,
v.
Warden of Tyger River Correctional
Institution,
Respondent.

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Civil Action No. 9:17-945-TMC
ORDER

Petitioner, a state prisoner proceeding pro se, brought this action seeking a 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. On
January 17, 2018, this court dismissed Petitioner’s habeas claim to the extent that Petitioner was
challenging the validity of his 2008 conviction and sentence1 and allowed the case to proceed on
a limited basis challenging the calculation of Petitioner’s sentence. (ECF No. 16). On March 6,
2018, Respondent filed a motion for summary judgment. (ECF No. 25). Before the court is the
magistrate judge’s Report and Recommendation (“Report”) (ECF No. 36), recommending that
the court grant Respondent’s motion for summary judgment. Petitioner was advised of his right
to file objections to the Report. (ECF No. 36 at 7). Petitioner filed objections to the Report on
June 21, 2018. (ECF No. 38). On July 5 and 12, 2018, Respondent filed supplements to his
objections. (ECF Nos. 39 and 40).
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–
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Petitioner previously filed a § 2254 habeas petition challenging his conviction. Foster v. Reynolds, No. 9:14-3853TMC-BM (D.S.C. Oct. 2, 2014). Because Petitioner has not received authorization to file a successive petition from
the Fourth Circuit Court of Appeals, this court lacked jurisdiction to consider that part of the petition. See United
States v. Winestock, 340 F.3d at 205 (4th Cir. 2003).
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71 (1976). In the absence of objections, this court is not required to provide an explanation for
adopting the Report. 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
accept the recommendation.” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
The magistrate judge’s Report describes the procedural history and background of this
action. (ECF No. 36 at 1-3). Briefly, Petitioner is serving a twenty-year sentence for possession
with intent to distribute crack cocaine, third or subsequent offense, under S.C. Code § 44-53375(B)(3), (ECF No. 25-2), with a projected max-out date of September 28, 2024, (ECF No. 253).

He argues in his habeas petition that the South Carolina Department of Corrections

(“SCDC”) incorrectly calculated his max-out date and incorrectly classified him as a no-parole,
85% offender. (ECF No. 1 at 14). Respondent filed a motion for summary judgment arguing (1)
that Petitioner failed to exhaust his state court remedies and (2) that the SCDC correctly
calculated Petitioner’s sentence. (ECF No. 25). In his Report, the magistrate judge finds that
Petitioner fails to allege or show that he satisfied the jurisdictional requirement for federal habeas
corpus actions by first exhausting state remedies. (ECF No. 36 at 4-6). Further, the magistrate
judge finds that the only records before the court show that, while Petitioner did file internal
grievances with the SCDC and appeal to the Administrative Law Court (“ALC”), he failed to
appeal to the South Carolina Court of Appeals and therefore his petition warrants dismissal for
failure to exhaust appropriate state remedies.2 Id. at 5-6.

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The magistrate judge does not address Respondent’s second argument for summary judgment but rather finds that
dismissal is warranted based on Respondent’s exhaustion argument.
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In the objections and supplements filed by Petitioner (ECF Nos. 38, 39 and 40),
Petitioner fails to address the dispositive portion of the magistrate judge’s Report. Petitioner
fails to assert or show that he properly exhausted the available state court remedies. Rather,
Petitioner’s objections largely restate arguments that have been previously ruled on from his
petition (ECF No. 1) and response to Respondent’s motion for summary judgment (ECF No. 28).
(ECF No. 38 at 1-6).3
Liberally construing Petitioner’s objections, the sole argument relating to the ALC or
exhaustion requirement that the court can glean is Petitioner’s statement that he raised his
argument with the ALC about serving an invalid sentence, and the ALC stated in its order that it
did not have the jurisdiction or authority to correct the error. (ECF No. 38 at 5). Respondent
attached Petitioner’s grievance file to Respondent’s motion for summary judgment, including the
ALC’s order ruling on Petitioner’s grievance. (ECF No. 25-4). In its order, the ALC stated that
it would not consider Petitioner’s argument with respect to “alleged errors made by the courts
below as to his convictions and sentences,” because “[t]hose are direct appeal or PCR matters
over which this Court has no jurisdiction.” (ECF No. 25-4 at 25). However, the ALC addressed
Petitioner’s arguments regarding the SCDC’s classification of Petitioner as an 85% offender and
proceeded to find that “even had [Petitioner] made a legally adequate argument, the Court would
still have found no error in the Department’s calculation of his sentence and max-out date in this
matter,” and then explained its analysis. Id. at 28. The court finds nothing in the ALC’s order to
address or remedy Petitioner’s failure to exhaust his remaining state remedies after the ALC filed
its order on December 20, 2017. Id. at 29-30.

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To the extent that Petitioner mentions actual innocence, the court has previously addressed this assertion and
Petitioner has not provided any further argument in support of such an assertion. (C.A. No. 9:14-cv-3853-TMC,
ECF Nos. 42 at 17-18 and 71 at 4). Moreover, such a claim is a challenge to Petitioner’s conviction and, as noted
above, this court lacks jurisdiction to consider such a claim without authorization. See supra note 1.
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Petitioner also cites to the United States Supreme Court opinion Jones v. Bock, for the
rule that an inmate is not required to specially plead or demonstrate exhaustion of administrative
remedies in his civil rights complaint. 549 U.S. 199, 212-217 (2007). Jones provides that failure
to exhaust is an affirmative defense that must be raised by the defendant. Id. at 216. However,
this court addressed Jones in its prior order in this case when it dismissed Petitioner’s habeas
claims challenging the validity of his 2008 conviction, but remanded to the magistrate judge
Petitioner’s claims regarding the alleged miscalculation of his sentence because exhaustion had
not been raised as an affirmative defense at that time and exhaustion was not apparent from the
face of the petition. (ECF No. 16). Respondent then filed its motion for summary judgment
arguing that Petitioner failed to exhaust his state remedies. (ECF Nos. 25-1 at 4-5 and 36 at 3).
The court agrees with the magistrate judge’s conclusion that the instant petition should now be
dismissed due to Petitioner’s failure to demonstrate or allege that he properly exhausted his state
remedies before filing this action. Based on the foregoing, Petitioner’s objections lack merit and
are overruled.
After a careful and thorough review of the Report and the record under the appropriate
standards, the court adopts the magistrate judge’s Report (ECF No. 36) and incorporates it
herein. Accordingly, Respondent’s motion for summary judgment (ECF No. 25) is GRANTED
and Petitioner’s habeas petition is DISMISSED without prejudice.
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

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(2003); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the court finds that
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
August 17, 2018
Anderson, South Carolina

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