Ingram v. State of SC ( 1998 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    WILLIE RAY INGRAM,
    Petitioner-Appellant,
    v.
    No. 97-7557
    STATE OF SOUTH CAROLINA; CHARLES
    MOLONY CONDON; COLIE L.
    RUSHTON,
    Respondents-Appellees.
    Appeal from the United States District Court
    for the District of South Carolina, at Columbia.
    Matthew J. Perry, Jr., Senior District Judge.
    (CA-96-2554-3-10BC)
    Submitted: June 30, 1998
    Decided: October 16, 1998
    Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.
    _________________________________________________________________
    Vacated and remanded by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Willie Ray Ingram, Appellant Pro Se. Donald John Zelenka, Chief
    Deputy Attorney General, Columbia, South Carolina, for Appellees.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Willie Ingram appeals from a district court order dismissing with-
    out prejudice his action seeking habeas corpus relief under 
    28 U.S.C.A. § 2254
     (West 1994 & Supp. 1998). The district court found
    that, despite having waited for over three and one-half years for a rul-
    ing on his state application for postconviction relief, Ingram could not
    seek review of his claims in federal court because they had not been
    exhausted in state court. The court found that Ingram's state remedy
    was not ineffective because he never sought mandamus relief from
    the South Carolina Supreme Court, which could have directed some
    form of action to remedy the inordinate delay in Ingram's case.
    Where, however, a habeas petitioner fails to exhaust his state reme-
    dies and the state court would now find his claims procedurally barred
    if he tried to do so, further exhaustion is not required. See Coleman
    v. Thompson, 
    501 U.S. 722
    , 735 n.1 (1991); Breard v. Pruett, 
    134 F.3d 615
    , 619 (4th Cir. 1998). But, under such circumstances, federal
    habeas review is barred unless the petitioner can establish cause for
    his default and actual prejudice. See Teague v. Lane, 
    489 U.S. 288
    ,
    297-98 (1989). We conclude that the posture of this case precludes
    Ingram's return to state court.
    First, prior to the district court's decision, the state court, at
    Ingram's request, voluntarily dismissed with prejudice his second
    post-conviction relief application. Clearly, this constituted a proce-
    dural default. Second, Ingram would be barred under South Carolina
    law from presenting claims that could have been, but were not, pres-
    ented in his first state post-conviction relief application, absent a suf-
    ficient reason for the failure. See 
    S.C. Code Ann. § 17-27-90
     (Law.
    Co-op 1985); Aice v. State, 
    409 S.E.2d 392
    , 393-94 (S.C. 1991).
    Based on the nature of Ingram's federal claims it appears that they
    could have been raised at the time of his first state application. If
    Ingram cannot establish cause for his failure to raise his federal
    claims in his first state application, the district court may conclude
    that Ingram's claims would be procedurally defaulted in state court
    and that federal habeas review is barred. If he can establish good
    cause, the court may conclude that the South Carolina courts would
    2
    not find the claims procedurally barred based on Ingram's failure to
    raise them in his first application. Federal habeas review will then be
    appropriate if Ingram can make all other pertinent showings of cause
    and prejudice.*
    Ingram's motion to add Colie Rushton, Warden of McCormick
    Correctional Institution, as a party Respondent, is granted, although
    we find that Ingram's transfer to McCormick during the pendency of
    this proceeding constituted no prejudical violation, if any, of Federal
    Rule of Appellate Procedure 23(a).
    Accordingly, we vacate the order of the district court and remand
    for further consideration consistent with this opinion. We dispense
    with oral argument because the facts and legal contentions are ade-
    quately presented in the materials before the court and argument
    would not aid the decisional process.
    VACATED AND REMANDED WITH INSTRUCTIONS
    _________________________________________________________________
    *We note that Ingram asserted below that his voluntary dismissal was
    necessitated by the state court's inordinate delay. In rejecting this conten-
    tion, the district court found that Ingram could have avoided the delay by
    seeking mandamus relief. If the district court revisits this issue on
    remand, we note that it should discuss Ingram's allegations that he twice
    sought mandamus relief to no avail.
    3
    

Document Info

Docket Number: 97-7557

Filed Date: 10/16/1998

Precedential Status: Non-Precedential

Modified Date: 10/30/2014