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Millen v. State of South Carolina - Document No. 5

Millen v. State of South Carolina - Document No. 5

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Published by Justia.com
REPORT AND RECOMMENDATION recommending 1 Petition for Writ of Habeas Corpus filed by Kevin D Millen be dismissed without prejudice. Objections to R&R due by 2/22/2007. Signed by Judge William M Catoe on 2/1/07. (ladd, ) Additional attachment(s) added on 2/2/2007 (dnap, ). 6:2007cv00277 South Carolina District Court
REPORT AND RECOMMENDATION recommending 1 Petition for Writ of Habeas Corpus filed by Kevin D Millen be dismissed without prejudice. Objections to R&R due by 2/22/2007. Signed by Judge William M Catoe on 2/1/07. (ladd, ) Additional attachment(s) added on 2/2/2007 (dnap, ). 6:2007cv00277 South Carolina District Court

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Published by: Justia.com on Apr 30, 2008
Copyright:Public Domain

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10/14/2013

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Kevin D. Millen, # 232987,
aka Kevin Don Millen,
Petitioner,
vs.
State of South Carolina; and
LeVern Cohen, W arden of Ridgeland Correctional
Institution,
Respondents.
____________________________________________
)
C/A No. 6:07-0277-CMC-WMC
)))))
Report and Recommendation
)))))))
Background of this Case

The petitioner is an inmate at the Ridgeland Correctional Institution of the South Carolina Department of Corrections (SCDC). On November 15, 2005, in the Court of General Sessions for Colleton County, the petitioner pled guilty to common law robbery and was sentenced to fifteen (15) years in prison. No direct appeal was filed. The petitioner\u2019s answers to Questions 10 and 11 of the Section 2254 petition (Entry No.1) reveal that he has not filed any other applications, petitions, or motions with respect to his conviction. The petitioner raises various grounds in the petition: ineffective

6:07-cv-00277-CMC
Date Filed 02/01/2007
Entry Number 5
Page 1 of 13
Millen v. State of South Carolina
Doc. 5
Dockets.Justia.com
Pursuant to the provisions of 28 U.S.C. \u00a7 636(b)(1)(B) and Local Civil Rule 73.02 (DSC),
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the undersigned is authorized to review such complaints for relief and submit findings and
recommendations to the District Court.
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assistance of counsel; lack of subject matter jurisdiction; violation of due
process; and newly-discovered evidence.
Discussion

Under established local procedure in this judicial district, a careful review has been made of the pro se petition pursuant to the procedural provisions of 28 U.S.C. \u00a7 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the

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following precedents: Denton v. Hernandez, 504 U.S. 25, 118 L.Ed.2d 340, 112 S.Ct. 1728, 1992 U.S. LEXIS\u00ae 2689 (1992); Neitzke v. Williams, 490 U.S. 319, 324-325, 104 L.Ed.2d 338, 109 S.Ct. 1827, 1989 U.S. LEXIS\u00ae 2231 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951, 1995 U.S.App. LEXIS\u00ae 26108 (4th Cir. 1995)(en banc), cert. denied, 516 U.S. 1177, 134 L.Ed.2d 219, 116 S.Ct. 1273 (1996); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); and

6:07-cv-00277-CMC
Date Filed 02/01/2007
Entry Number 5
Page 2 of 13
Boyce has been held by some authorities to have been abrogated in part, on other grounds,
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by Neitzke v. W illiams, 490 U.S. 319 (1989)(insofar as Neitzke establishes that a complaint that fails to state a claim, under Federal Rule of Civil Procedure 12(b)(6), does not by definition merit sua sponte dismissal under 28 U.S.C. \u00a7 1915(e)(2)(B)(i) [formerly 28 U.S.C. \u00a7 1915(d)], as \u201cfrivolous\u201d).

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Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).Pro se complaints and
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petitions are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert. denied, Leeke v. Gordon, 439 U.S. 970 (1978), and a federal district court is charged with liberally construing a complaint or petition filed by a pro se litigant to allow the development of a potentially meritorious case.Se e Hughes v. Rowe, 449 U.S. 5, 9 (1980); and Cruz v. Beto, 405 U.S. 319 (1972). When a federal court is evaluating a pro se complaint or petition, the plaintiff's 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. Weller v. Department of Social Services, 901 F.2d 387, 1990 U.S.App. LEXIS\u00ae 6120 (4th Cir. 1990).

6:07-cv-00277-CMC
Date Filed 02/01/2007
Entry Number 5
Page 3 of 13

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