Kinard v. DuncanKinard v. Duncan
This matter is before the Court for review of the Report and Recommendation (the “Report“) of United States Magistrate Judge Kaymani D. West, issued under
The Court has liberally construed Petitioner‘s filing and reviewed de novo the portions of the Report challenged by specific objections. For the reasons below, the
A. Background
Petitioner was convicted of kidnapping in 1989 and sentenced to life imprisonment. He was released on parole in February 2016. In September 2022, a Marlboro County grand jury indicted him for second-degree domestic violence, unlawful carrying of a pistol, possession of a firearm by a felon, hit and run, and possession of controlled substances. The South Carolina Board of Probation, Parole, and Pardon Services revoked Petitioner‘s parole on February 7, 2023. (DE 25-2–DE 25-4.)
A prosecutor dismissed the new indictments with leave to restore on January 10, 2024. Petitioner then filed an application for post-conviction relief (“PCR“) on June 13, 2024, challenging the parole revocation and seeking reinstatement to parole. The PCR court dismissed the application on March 13, 2025, as untimely under South Carolina‘s one-year limitations period. Petitioner sought appellate review. On September 10, 2025, the Supreme Court of South Carolina dismissed his notice of appeal under Rule 243(c), SCACR, after concluding that he had not shown an
Petitioner filed this federal action on October 3, 2025. He alleges that his continued incarceration is unconstitutional because the charges associated with the revocation were later dismissed, and he seeks reinstatement to parole, release from custody, and monetary damages. Respondent moved for summary judgment based principally on exhaustion and procedural default. After receiving notice under Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner responded and filed two motions for summary judgment, as well as motions seeking discovery, production of his parole file, and immediate reinstatement to parole. (DE 25–DE 48.)
The Report concluded that Petitioner failed to present his parole-revocation challenge to the state courts in a procedurally proper manner because his PCR application was untimely. (DE 51 at 5.) It also concluded that Petitioner had not shown cause and prejudice or a fundamental miscarriage of justice sufficient to excuse the resulting default. (Id. at 6.) The Report, therefore, recommends summary judgment for Respondent and denial of Petitioner‘s dispositive and non-dispositive motions. (DE 51.)
In his objections, Petitioner contends that the documents attached to DE 55 prove exhaustion. (DE 55.) Those documents include an order dismissing an initial appeal from a non-appealable conditional order, an order transferring the matter to the Supreme Court of South Carolina, the September 10, 2025, order dismissing the appeal from the final PCR disposition, and a remittitur. Petitioner also repeats that
B. Legal Standard
The Court must review de novo only those portions of the Report to which a party makes a specific objection.
When no specific objection is made, the Court need not conduct de novo review and need only satisfy itself that there is no clear error on the face of the record before accepting the recommendation. Diamond v. Colonial Life & Accident Insurance Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
C. Discussion
1. Section 2254 Governs the Petition
Petitioner labeled his filing as a petition under
2. The State Proceedings Establish Procedural Default
A state prisoner must give the state courts a full and fair opportunity to resolve each federal claim before seeking federal habeas relief. See
Petitioner‘s objection is correct in one limited respect: the exhibits to DE 55 show that the state proceedings he initiated have concluded. They do not, however, show that the state courts reached his federal claims on the merits. The PCR court dismissed his application as untimely under
When no state remedy remains because a petitioner failed to comply with a state procedural rule, the claim is technically exhausted but procedurally defaulted for federal habeas purposes. See Coleman v. Thompson, 501 U.S. 722, 732, 735 n.1 (1991). Here, the timeliness ruling rests on state law independent of Petitioner‘s federal claims, and Petitioner identifies no basis to question the adequacy of the one-year filing rule. The Clerk‘s docketing of this federal action and assignment of a case number did not decide exhaustion. Nor is there another state tribunal to which this Court can direct Petitioner now. The absence of a presently available state remedy is the reason the claims are defaulted rather than merely unexhausted. The Court, therefore, overrules Petitioner‘s exhaustion objection.
3. Petitioner Has Not Excused the Default
A federal court may review a procedurally defaulted claim only if the petitioner demonstrates “cause for the default and actual prejudice[,]” or shows that failure to consider the claim would result in “a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Cause requires an “objective factor external to the defense” that impeded compliance with the State‘s procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986); McNeill v. Polk, 476 F.3d 206, 214 (4th Cir. 2007).
Petitioner states that he was not given information explaining how to challenge the revocation and argues that the courts have misunderstood his filings. (DE 55.) But he identifies no interference by officials or unavailable factual or legal
Petitioner also has not established a fundamental miscarriage of justice. Even assuming without deciding that a comparable actual innocence gateway applies to a parole revocation challenge, dismissal of the later criminal charges with leave to restore is not an adjudication that Petitioner did not engage in the conduct underlying the revocation. Morrissey and Gagnon recognize that revocation is not part of a criminal prosecution and is governed by a distinct due process framework. See Morrissey v. Brewer, 408 U.S. 471, 480 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). The revocation record also identified additional violations involving Petitioner‘s failure to pay required fees and fines and failure to contact his supervising officer after his arrests. Petitioner offers no new reliable evidence negating the conduct underlying any ground for revocation.
4. The Dismissal of the New Charges Does Not Excuse the Default
Petitioner argues that his continued custody violates the Fifth Amendment because the indictments were dismissed on January 10, 2024, and were not restored within the period he believes state law permits. That contention concerns the merits of his parole revocation challenge; it does not identify cause for the untimely PCR filing or new evidence sufficient to invoke the miscarriage-of-justice exception. The
The Court does not decide the ultimate merits of any properly preserved due-process challenge to the revocation proceeding. The Petition is denied because the asserted federal claims were defaulted in state court and Petitioner has not established an exception permitting federal merits review.
5. Discovery and the Remaining Motions
Petitioner contends that Respondent should be compelled under Rules 33 and 34 to produce the parole file and other records. But the civil discovery rules do not apply automatically in habeas proceedings. Rule 6(a) of the Rules Governing Section 2254 Cases permits discovery only for good cause. See Bracy v. Gramley, 520 U.S. 899, 904 (1997). Good cause requires specific allegations giving the Court reason to believe that, if the facts are fully developed, the petitioner may be entitled to relief. Id. at 908–09. Petitioner seeks the records primarily to contest the merits of the revocation, but he does not explain how they would establish an objective external cause for his untimely PCR filing or a miscarriage-of-justice exception. Discovery, therefore, cannot overcome the dispositive procedural bar.
Accordingly, Petitioner‘s Motions to Compel (DE 30; DE 44; DE 48), Motion for Production of the Parole File (DE 35), and Motion for Production of Documents (DE 42) are denied for lack of good cause and, alternatively, as moot. Petitioner‘s Motion for Injunctive Relief (DE 33) and Motion for Reinstatement to Parole (DE 36) are
6. Request for Appointed Counsel
Petitioner requests appointment of counsel in DE 55. There is no constitutional right to appointed counsel in collateral proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions . . . and we decline to so hold today.“). The Court may appoint counsel for a financially eligible habeas petitioner when “the interests of justice so require.”
The record is adequate to resolve the dispositive procedural issue, no evidentiary hearing is warranted, and Petitioner has been able to present his position and supporting state court documents. The issue is primarily legal, and appointment of counsel would not alter the procedural default analysis. The interests of justice, therefore, do not require appointment, and the request is denied.
A certificate of appealability may issue only if Petitioner makes “a substantial showing of the denial of a constitutional right.”
E. Conclusion
Accordingly, the Court OVERRULES Petitioner‘s objections (DE 55) and ADOPTS the Report (DE 51) as modified and supplemented by this Order. Respondent‘s Motion for Summary Judgment (DE 25) is GRANTED, and Petitioner‘s Motions for Summary Judgment (DE 29; DE 31) are DENIED. The Petition is DENIED, and the habeas claims are DISMISSED WITH PREJUDICE as procedurally defaulted. This disposition does not adjudicate the underlying constitutional claims on the merits.
Petitioner‘s discovery motions (DE 30; DE 35; DE 42; DE 44; DE 48) are DENIED. Petitioner‘s requests for injunctive relief or reinstatement to parole (DE 33; DE 36) and Respondent‘s Motion to Hold Non-dispositive Motions in Abeyance (DE 50) are DENIED AS MOOT. Any request for monetary damages is DISMISSED WITHOUT PREJUDICE as not cognizable in habeas proceedings.
IT IS SO ORDERED.
Joseph Dawson, III
United States District Judge
Florence, South Carolina
August 5, 2026
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A party seeking to appeal must file a notice of appeal with the Clerk of Court within thirty (30) days after entry of the judgment.