Westpoint v. Cannon et al
ORDER AND OPINION adopting 10 Report and Recommendation of Magistrate Judge Bristow Marchant. The Court DISMISSES WITHOUT PREJUDICE the petition for habeas relief (Dkt. No. 1 ). A certificate of appealability is DENIED. Signed by Honorable Richard M Gergel on 10/30/2017.(ssam, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Sheriff Al Cannon,
Civil Action No. 9:17-2137-RMG
ORDER AND OPINION
This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending summary dismissal of the petition for habeas relief under 28 U.S.C. § 2241.
Plaintiff was arrested for accessory to a felony and drug charges in March 2017. He is currently
in pretrial detention at the Al Cannon Detention Center in Charleston, South Carolina. Petitioner
seeks habeas relief from his pretrial detention, asserting that he has been given excessive bond,
denied a speedy trial, denied access to court, and otherwise denied due process oflaw. His petition
provides no explanation of, or allegations supporting, those claims. His only support for his claims
is the cryptic statement,
I petition also stand on the grounds of State v. Cole [403) S.E.2d 171 ([S.C.] 1991)
motion of discovery Rule (5) subdivision A(l) and rules of evidence 702 and 703.
(Dkt. No. 1 at 3.) The question presented in South Carolina v. Cole was whether necessity is a
defense to driving under a suspended license. 403 S.E.2d at 118. Rule 5(a)(l) is a South Carolina
rule of criminal procedure requiring disclosure of certain information to a criminal defendant.
Rules of evidence 702 and 703 concern expert witness testimony. None has any relevance to
As the Magistrate Judge correctly determined, the abstention doctrine of Younger v. Harris
prohibits interference with state criminal proceedings except in the most extraordinary
circumstances. Where adequate remedies are available in state court, whether pretrial, at trial, or
after trial , no special circumstance is shown. Petitioner may raise all claims raised in his petition
in state court. The Court therefore ADOPTS the Report and Recommendation of the Magistrate
Judge (Dkt. No. 10) as the Order of the Court and DISMISSES WITHOUT PREJUDICE the
petition for habeas relief (Dkt. No. 1).
Certificate of Appealability
The governing law provides that:
(c)(2) A certificate of appealability may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable
jurists would find this court's assessment of his constitutional claims debatable or wrong and that
any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,
252 F.3d 676, 683 (4th Cir. 2001 ). In this case, the legal standard for the issuance of a certificate
of appeal ability has not been met. Therefore, a certificate of appealability is DENIED.
AND IT IS SO ORDERED.
Richard Mark Gergel
United States District Court Judge
October l ...:~ 2017
Charleston, South Carolina
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