Long v. Ozmint

Citation558 F.Supp.2d 624
Decision Date31 March 2008
Docket NumberCivil Action No. 6:07-3495-HFF-WMC.
CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
PartiesJerome LONG, Petitioner, v. Jon OZMINT, Director of SCDC; and Richard Bazzle, Warden of Perry Correctional Institution, Respondents.

Jerome Long, Pelzer, SC, pro se.

ORDER

HENRY F. FLOYD, District Judge.

This case was filed as a 28 U.S.C. § 2254 action. Petitioner is proceeding pro se. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that the petition be dismissed without prejudice and without requiring the respondents to file a return. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.

The Magistrate Judge makes only a recommendation to this 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, 96 S.Ct. 549, 46 L.Ed.2d 483 (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 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).

The Magistrate Judge filed the Report on October 25, 2007, and the Clerk of Court entered Petitioner's objections to the Report on November 9, 2007. The Court has reviewed Petitioner's objections, but finds them to be without merit.

After a thorough review of the Report, the objections, and the record in this case pursuant to the standard set forth above, the Court overrules Petitioner's objections, adopts the Report and incorporates it herein. Therefore, it is the judgment of this Court that petition be DISMISSED without prejudice and without requiring the respondents to file a return.

IT IS SO ORDERED.

Report and Recommendation

WILLIAM M. CATOE, United States Magistrate Judge.

Background of this Case

The petitioner is an inmate at the Perry Correctional Institution of the South Carolina Department of Corrections (SCDC). On February 8, 1995, in the Court of General Sessions for Orangeburg County, the petitioner was convicted of murder (Indictment No. 94-GS-38-1354) and given a life sentence. The Supreme Court of South Carolina affirmed the conviction and sentence on direct appeal. State v. Long, 325 S.C. 59, 480 S.E.2d 62 (1997). The petitioner filed his first application for post-conviction relief (Case No. 95-CP-38-833) in December of 1995. The application was dismissed without prejudice as premature because the direct appeal was pending.

Information disclosed by the petitioner in the petition and documents filed with the respondents' return in the petitioner's prior habeas corpus action, Long v. Ozmint, Civil Action No. 6:06-0449-HFFWMC, indicate that the petitioner has filed three other applications for post-conviction relief in state court: Case No. 97-CP-38-106 (dismissed on March 22, 2000; certiorari denied on October 25, 2001); Case No.2001-CP-38-1438 (dismissed on August 11, 2002); Case No.2003-CP-38-325 (dismissed as successive and untimely on March 22, 2004; certiorari denied on February 15, 2006). The petitioner has also filed a state court habeas corpus action (Case No.2005-CP-38-1182), which is still pending. In the petition in the case at bar, the petitioner raises one (1) ground: inordinate delay in the pending state court habeas corpus action.

Discussion

Under established local procedure in this judicial district, a careful review has been made of the pro se petition and the Form AO 240 (motion to proceed in forma pauperis) pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review1 has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir.1995) (en banc), cert. denied, 516 U.S. 1177, 116 S.Ct. 1273, 134 L.Ed.2d 219 (1996); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir.1979) (recognizing the district court's authority to conduct an initial screening of any pro se filing);2 Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978), cert. denied, Moffitt v. Loe, 446 U.S. 928, 100 S.Ct. 1865, 64 L.Ed.2d 281 (1980); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert, denied, Leeke v. Gordon, 439 U.S. 970, 99 S.Ct. 464, 58 L.Ed.2d 431 (1978). The petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. See Erickson v. Pardus, ___ U.S. ___, 127 S.Ct. 2197, 167 L.Ed.2d 1081, 75 U.S.L.W. 3643 (2007) (per curiam); Hughes v. Rowe, 449 U.S. 5, 9-10 & n. 7, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam); and Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). When a federal court is evaluating a pro se complaint or petition, the plaintiffs or petitioner's allegations are assumed to be true. Fine v. City of New York, 529 F.2d 70, 74 (2nd Cir.1975). Even under this less stringent standard, the petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Welter v. Department of Social Services, 901 F.2d 387 (4th Cir.1990).

With respect to his conviction for murder, the petitioner's sole federal remedy is a writ of habeas corpus under 28 U.S.C. § 2241 or 28 U.S.C. § 2254, which can be sought only after he has exhausted his state court remedies. See 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); and Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-491, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) (exhaustion required under 28 U.S.C. § 2241). Although the petitioner has exhausted his state remedies, he has, in the case at bar, submitted a successive petition.

In Jerome Long v. Director Jon Ozmint, et al., Civil Action No. 6:06-0449-HFF-WMC, the petitioner on February 24, 2006, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The undersigned granted the petitioner's motion to proceed in forma pauperis, authorized service of process, and directed the respondents to file a return. After receiving an extension of time, the respondents on May 17, 2006, filed a return and a motion for summary judgment. In their motion for summary judgment, the respondents contended that the one ground raised in the habeas corpus petition — inordinate delay in the pending state court habeas corpus case — was a matter of state law, not federal law.

On May 18, 2006, the undersigned, by order, apprised the petitioner of dispositive procedure, as required by Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.1975). The petitioner filed his response to the Roseboro order on May 23, 2006.

In a Report and Recommendation filed in Civil Action No. 6:06-0449-HFF-WMC on October 13, 2006, the undersigned recommended that the respondents' motion for summary judgment be granted. The parties were apprised of their right to file timely and specific written objections to the Report and Recommendation and of the serious consequences of a failure to so do.

On October 21, 2006, the petitioner filed objections to the Report and Recommendation. In those objections (Entry No. 25 in Civil Action No. 6:06-0449-HFF-WMC), the petitioner reiterated the ground of inordinate delay raised in the original petition. On December 28, 2006, the Honorable Henry F. Floyd, United States District Judge, concluded that the objections were not specific, adopted the Report and Recommendation, and granted summary judgment to the respondents. Long v. Ozmint, 2006 WL 3832988, 2006 U.S. Dist. LEXIS 93790 (D.S.C., December 28, 2006).

The petitioner's subsequent appeal in Civil Action No. 6:06-0449-HFF-WMC (Fourth Circuit Docket No. 07-6070) was not successful. On June 27, 2007, the United States Court of Appeals for the Fourth Circuit dismissed the appeal. Long v. Ozmint, 231 Fed.Appx. 258, 2007 WL 1832187 (4th Cir.2007). The decision of the Court of Appeals is quoted herein:

PER CURIAM:

Jerome Long seeks to appeal the district court's order denying relief on his 28 U.S.C. § 2254 (2000) petition. The district court referred this case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) (2000). The magistrate judge recommended that relief be denied and advised Long that failure to file timely objections to this recommendation could waive appellate review of a district court order based upon the recommendation. Despite this warning, Long failed to object to the grounds upon which the magistrate judge recommended denying relief.

The timely filing of specific objections to a magistrate judge's recommendation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned of the consequences of noncompliance. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir.1985); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Long has waived appellate review by failing to timely file specific objections after receiving proper notice. Accordingly, we deny a certificate of appealability and dismiss the appeal.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED.

Long v. Ozmint, 231 Fed.Appx. at 258-259.

The standard for determining whether a petition is successive appears in Slack v. McDaniel, 529 U.S. 473, 485-89, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2...

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