Petition for Writ of Certiorari — Jerome Curry, Petitioner v. Terri Wallace, Warden, et al.

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 25-6305

JEROME CURRY, a/k/a Flesh And Blood Man,

Petitioner - Appellant,

v.

KIRKLAND CORR. INST.; LIEBER CORR. INST. WARDEN; ATTORNEY

GENERAL OF SOUTH CAROLINA; STATE OF SOUTH CAROLINA,

Respondents - Appellees.

No. 25-6377

JEROME CURRY, a/k/a Flesh And Blood Man,

Petitioner - Appellant,

v.

KIRKLAND CORR. INST.; LIEBER CORR. INST. WARDEN; ATTORNEY

GENERAL OF SOUTH CAROLINA; STATE OF SOUTH CAROLINA,

Respondents - Appellees.

Appeals from the United States District Court for the District of South Carolina, at Rock

Hill. Jacquelyn Denise Austin, District Judge. (0:24-cv-01674-JDA)

Submitted: August 28, 2025

Decided: September 3, 2025

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Before GREGORY, QUATTLEBAUM, and HEYTENS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Jerome Curry, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Jerome Curry seeks to appeal the district court’s order accepting the

recommendation of the magistrate judge and dismissing Curry’s 28 U.S.C. § 2254 petition

without prejudice for failure to exhaust state court remedies. The order is not appealable

unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C.

§ 2253(c)(1)(A). A certificate of appealability will not issue absent “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(cX2). When the district court

denies relief on the merits, a prisoner satisfies this standard by demonstrating that

reasonable jurists could find the district court’s assessment of the constitutional claims

debatable or wrong. See Buck v. Davis, 580 U.S. 100. 115-17 (2017). When the district

court denies relief on procedural grounds, the prisoner must demonstrate both that the

dispositive procedural ruling is debatable and that the petition states a debatable claim of

the denial of a constitutional right. Gonzalez v. Thaler, 565 U.S. 134.140-41 (2012) (citing

Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

We have independently reviewed the record and conclude that Curry has not made

the requisite showing. Accordingly, we deny Curry’s pending motions, 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 this court and

argument would not aid the decisional process.

DISMISSED

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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 25-6305 (L)

(0:24-cv-01674-JDA)

JEROME CURRY, a/k/a Flesh And Blood Man

Petitioner - Appellant

v.

KIRKLAND CORR. INST.; LIEBER CORR. INST. WARDEN; ATTORNEY

GENERAL OF SOUTH CAROLINA; STATE OF SOUTH CAROLINA

Respondents - Appellees

No. 25-6377

(0:24-cv-01674-JDA)

JEROME CURRY, a/k/a Flesh And Blood Man

Petitioner - Appellant

v.

KIRKLAND CORR. INST.; LIEBER CORR. INST. WARDEN; ATTORNEY

GENERAL OF SOUTH CAROLINA; STATE OF SOUTH CAROLINA

Respondents - Appellees

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JUDGMENT

In accordance with the decision of this court, a certificate of appealability is

denied and the appeal is dismissed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed, R, App, P. 41.

/s/ NWAMAKA ANOWL CLERK

0:24-cv-01674-JDA

Date Filed 08/30/24

Entry Number 81

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

)

Jerome Curry,

C/ANo. 0:24-1674-JDA-PJG

)

)

Petitioner,

)

)

v.

REPORT AND RECOMMENDATION

)

Kirkland Corr. Ins/ State of South Carolina,

)

Respondent.

)

)

)

Petitioner Jerome Curry, a self-represented state prisoner, filed this petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C.

§ 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.). The court authorized service in this case

and directed the parties to file briefing stating their position on whether this case should be

dismissed or stayed in light’s Petitioner’s indication that he has not yet exhausted his state court

remedies. (ECFNo. 36.) The parties provided briefs on the issue. (ECF Nos. 58 & 70). Having

carefully considered the parties’ submissions and the record in this case, the court concludes that

this case should be dismissed for Petitioner’s failure to exhaust his state court remedies.

Petitioner pled guilty in the Charleston County Court of General Sessions to attempted

armed robbery and was sentenced in October 2021 to six years’ imprisonment. 2021-GS-10-4573.

He did not appeal his conviction or sentence, but Petitioner filed an application for post-conviction

relief in the Charleston County Court of Common Pleas in 2022 that is pending. 2022-CP-10-

2017. On April 3, 2024, Petitioner filed this petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254, claiming multiple constitutional violations based on defective indictments, lack of

pretrial hearings, and Brady issues arising out of his 2021 armed robbery conviction.

Page 1 of4

0:24-cv-01674-JDA

Date Filed 08/30/24

Entry Number 81

Page 2 of 4

Petitioner has filed multiple motions to amend the petition since he originally filed this

case. In some of the motions, Petitioner appears to now also include grounds for habeas corpus

relief for a separate conviction—a 2011 indecent exposure charge to which he pled guilty in the

Charleston County Court of General Sessions. 2011-GS-10-2820. The court clarifies here that

Petitioner cannot seek habeas corpus relief in this case for an unrelated conviction arising out of a

different criminal case. Therefore, this case concerns only Petitioner’s 2021 attempted armed

robbery conviction. Any new grounds relief from Petitioner’s 2011 indecent exposure conviction

are not properly raised in this case and must be brought in a separate petition for a writ of habeas

corpus.

Turning back to the issue at hand—Petitioner’s petition for habeas corpus relief from his

2021 attempted armed robbery conviction—the court concludes that the petition should be

dismissed for Petitioner’s failure to exhaust his state remedies. A habeas corpus petitioner may

obtain relief in federal court only after he has exhausted his state court remedies. 28 U.S.C. §

2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims

to the state’s highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on

other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); see also In re Exhaustion

of State Remedies in Criminal and Post-Conviction Relief Cases. 471 S.E.2d 454,454 (S.C. 1990)

(holding that “when the claim has been presented to the Court of Appeals or the Supreme Court,

and relief has been denied, the litigant shall be deemed to have exhausted all available state

remedies.”). Generally, district courts must dismiss petitions that have unexhausted claims. Rose

v. Lundy, 455 U.S. 509,515 (1982). Though exhaustion is not jurisdictional, Jenkins v. Fitzberger,

440 F.2d 1188,1189 (4th Cir. 1971), the doctrine is strictly enforced, Thomas v. Eagleton, 693 F.

Supp. 2d 522, 538 (D.S.C. 2010).

Page 2 of 4

0:24-cv-01674-JDA

Date Filed 08/30/24

Entry Number 81

Page 3 of 4

Here, Petitioner admits he has not yet exhausted his state remedies in light of his pending

state PCR action, but he argues the court should stay this action.1 See Rhines v. Weber, 544 U.S.

269, 273-79(2005) (providing district courts should stay mixed § 2254 petitions in certain

circumstances to protect the petitioner from running afoul of the statute of limitations). However,

Petitioner provides no explanation for why this matter should be stayed. Petitioner does not appear

to have an issue with the statute of limitations, 28 U.SC. § 2244(d)(1), considering the statute of

limitations is tolled while Petitioner pursues relief in his state PCR case. 28 U.S.C. § 2244(d)(2).

Therefore, a stay is not necessary to protect Petitioner’s rights. Consequently, the court concludes

that this case should be dismissed for failure to exhaust, without prejudice to file a new petition

once he has exhausted his state court remedies.2

August 30, 2024

Paige J. Gossett

Columbia, South Carolina

UNITED STATES MAGISTRATE JUDGE

The Petitioner is directed to the important information in the attached

"Notice ofRight to File Objections to Report and Recommendation. ”

1 Notably, in light of his many motions to amend, Petitioner appears to raise direct appeal

claims as well as claims that are currently the subject of his state PCR application. (See, e.g., ECF

No. 54 at 3-4.) And because Petitioner did not file a direct appeal of his conviction or sentence,

his direct appeal claims are “technically exhausted” though they are likely procedurally defaulted

here. See generally Coleman v. Thompson. 501 U.S. 722, 731-32, (1991); Bassette v. Thompson,

915 F.2d 932, 937 (4th Cir. 1990) (“[W]hen it is clear that the state law would bar state review,

exhaustion is not required, and federal review is precluded.”).

2 In light of the court’s recommendation, Petitioner’s motion for summary judgment should

be denied. (ECF No. 61.)

Page 3 of 4

0:24-cv-01674-JDA

Date Filed 03/31/25

Entry Number 131

Page 1 of 5

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF SOUTH CAROLINA

ROCK HILL DIVISION

Jerome Curry

a/k/a

(Flesh And Blood Man),

)

)

)

Case No. 0:24-cv-01674-JDA

)

Petitioner,

)

OPINION AND ORDER

)

)

v.

)

Kirkland Corr. Inst., Lieber Corr. Inst.

Warden, Attorney General of South

Carolina, State of South Carolina,

)

)

)

)

Respondents.

)

)

This matter is before the Court on a Report and Recommendation (“Report”) of the

Magistrate Judge [Doc. 81] and on Petitioner’s motion for summary judgment [Doc. 61],

motion to strike Respondent’s motion to hold time [Doc. 87], motions to amend [Docs. 90;

97; 107; 114], motion for copies [Doc. 100], motion for change of venue [Doc. 110],

motion for PR appeal bond [Doc. 118], and motion for production of records [Doc. 119].

Proceeding pro se, Petitioner filed this petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 and has twice amended his petition. [Docs. 1; 9; 38.] In accordance with

28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., this matter was referred to

United States Magistrate Judge Paige J. Gossett for pre-trial proceedings.

On August 30, 2024, the Magistrate Judge issued the Report recommending that

the case be dismissed for failure to satisfy the exhaustion requirement of 28 U.S.C.

§ 2254(b)(1 )(A), without prejudice to his right to file a new petition once he has exhausted

his state court remedies, and that Petitioner’s summary judgment motion be denied.

0:24-cv-01674-JDA

Date Filed 03/31/25

Entry Number 131

Page 2 of 5

[Doc. 81.] The Magistrate Judge advised Petitioner of the procedures and requirements

for filing objections to the Report and the serious consequences if he failed to do so. [Id.

at 4.] On September 19 and 30, 2024, Petitioner filed objections to the Report and a

supplement to the objections.1 [Docs. 91; 93.]

The Magistrate Judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and the responsibility to make a final

determination remains with the Court. See Mathews v. Weber, 423 U.S. 261, 270-71

(1976). The Court is charged with making a de novo determination of any portion of the

Report of the Magistrate Judge to which a specific objection is made. The Court may

accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate

Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C.

§ 636(b). The Court will review the Report only for clear error in the absence of an

objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.

2005) (stating that “in the absence of a timely filed objection, a district court need not

conduct a de novo review, but instead must only satisfy itself that there is no clear error

on the face of the record in order to accept the recommendation” (internal quotation marks

omitted)).

1 On October 24, 2024, Petitioner filed a notice of appeal as to the Report. [Doc. 101.]

On January 29,2025, the United States Court of Appeals for the Fourth Circuit dismissed

the appeal for lack of appellate jurisdiction on the basis that the Report was neither a final

order nor an appealable interlocutory or collateral order. [Doc. 125.] The Court notes

that “while the filing of a notice of appeal confers jurisdiction on the court of appeals and

divests the district court of control over those aspects of the case involved in the appeal,

the district court does not lose jurisdiction when the litigant takes an appeal from an

unappealable order.” United States v. Jones, 367 F. App’x 482, 484 (4th Cir. 2010)

(cleaned up).

2

0:24-cv-01674-JDA

Date Filed 03/31/25

Entry Number 131

Page 3 of 5

As noted, the Magistrate Judge recommends dismissing this action for Petitioner’s

failure to exhaust his state remedies.2 [Doc. 81.] Specifically, the Magistrate Judge noted

that Petitioner admits he has not yet exhausted his state remedies in light of his pending

state post-conviction relief (“PCR”) action, but he argues the Court should stay this action.

[Id. at 3.] The Magistrate Judge indicated that the Petitioner does not appear to have an

issue with the statute of limitations, considering the statute of limitations is tolled while

Petitioner pursues relief in his state PCR case. [Id. (citing 28 U.S.C. § 2244(d)).]

In his objections, Petitioner appears to argue that because he has initiated PCR

proceedings, he has exhausted his administrative proceedings. [Doc. 91 at 3.] That is

not correct. “To satisfy the exhaustion requirement [set out in 28 U.S.C. § 2254(b)(1)(A)],

a habeas petitioner must fairly present his claim to the state’s highest court,” Matthews v.

Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v.

Barnette, 644 F.3d 192 (4th Cir. 2011), and “give the state courts one full opportunity to

resolve any constitutional issues by invoking one complete round of the [sjtate’s

established appellate review process,” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

Here, Petitioner has not yet completed this process. In fact, a review of the Charleston

County Public Index reveals that Petitioner recently filed a motion to amend his PCR

application on February 21, 2025, just a little more than one month ago. See Curry v.

South Carolina, No. 2022CP1002017, available at Charleston County Public Index,

https://jcmsweb.charlestoncounty.org/Publiclndex/

(search

by

case

number

2 The Report noted that Petitioner attempted to raise issues in his amended petitions that

were unrelated to his originally filed petition. [Doc. 81 at 2.] The Report declined to

address issues as to unrelated convictions arising out of different criminal cases for which

Petitioner would need to file a separate petition. [Id.]

3

0:24-cv-01674-JDA

Date Filed 03/31/25

Entry Number 131

Page 4 of 5

2022CP1002017) (last visited Mar. 28, 2025). Thus, Petitioner’s objection that he has

satisfied the habeas exhaustion requirement is overruled.

In a supplement to his objections, Petitioner, citing Davis v. Scott, 176 F.3d 805

(4th Cir. 1999), contends that the Magistrate Judge was without jurisdiction under 28

U.S.C. § 636(c) to issue the Report because Petitioner did not consent to a magistrate

judge presiding over his case. [Doc. 93 at 1.] However, in this case, the matter was

before the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Civil Rule

73.02(B)(2)(c) (D.S.C.) (providing for automatic references to magistrate judges of all

pretrial proceedings in applications for post-conviction review under 28 U.S.C. § 2254),

and thus no consent by Petitioner was required. Accordingly, Petitioner’s objection is

overruled.

Petitioner also contends that the Magistrate Judge has been biased towards him

as evidenced by the fact that she has consistently ruled against him. [Doc. 93 at 1-2.]

To the extent that Petitioner is arguing that the Magistrate Judge should be disqualified,

the disqualification statute provides:

(a) Any justice, judge, or magistrate judge of the United States

shall disqualify himself in any proceeding in which his

impartiality might reasonably be questioned.

(b) He shall also disqualify himself in

circumstances:

the following

(1) Where he has a personal bias or prejudice concerning

a party....

28 U.S.C. § 455(a), (b)(1). Critically, “judicial rulings alone almost never constitute a valid

basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994).

Because Petitioner’s allegation of the Magistrate Judge’s bias is based only on her rulings

4

0:24-cv-01674-JDA

Date Filed 03/31/25

Entry Number 131

Page 5 of 5

and recommendations that were unfavorable to him, the Court overrules this objection as

well.

In addition to the objections the Court has specifically discussed, out of an

abundance of caution for a pro se party, the Court has conducted a de novo review of the

Report, the record, and the applicable law. Upon such review, the Court accepts the

Report and Recommendation of the Magistrate Judge and incorporates it by reference.

Accordingly, this action is DISMISSED without prejudice to Petitioner’s right to file a new

petition once he has exhausted his state court remedies, and Petitioner’s motion for

summary judgment [Doc. 61] is DENIED.

Additionally, Petitioner’s motion to strike

Respondent’s motion to hold time [Doc. 87], motions to amend [Docs. 90; 97; 107; 114],

motion for copies [Doc. 100], motion for change of venue [Doc. 110], motion for PR appeal

bond [Doc. 118], and motion for production of records [Doc. 119] are DENIED.

IT IS SO ORDERED.

si Jacquelyn D, Austin

United States District Judge

March 31,2025

Columbia, South Carolina

NOTICE OF RIGHT TO APPEAL

The parties are hereby notified of the right to appeal this order pursuant to Rules

3 and 4 of the Federal Rules of Appellate Procedure.

5