REPORT AND RECOMMENDATION

BRISTOW MARCHANT, Magistrate Judge.

Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The pro se petition was filed on November 22, 2016.1 Petitioner is a state prisoner housed at the Kirkland Correctional Institution.

On June 6, 2017, the Respondent filed a return and motion to dismiss, without prejudice, based on Petitioner's failure to exhaust his administrative remedies. As the Petitioner is proceeding pro se, a Roseboro order was filed on June 12, 2017, advising Petitioner that he had thirty-four (34) days to file any material in opposition to the Respondent's motions. Petitioner was specifically advised in that order that if he failed to respond adequately, the motion to dismiss may be granted, thereby ending his case. Petitioner thereafter filed a memorandum in opposition on June 22, 2017.

This matter is now before the Court for disposition.2

Procedural History

Petitioner was convicted after a jury trial held in Richland County on November 12-16, and 18-19, 1996, of burglary, first degree [Indictment No. 96-GS-40-11974]; criminal sexual conduct, first degree [Indictment No. 96-40-11979]; kidnapping [Indictment No. 96-GS-40-11980]; robbery [Indictment No. 96-GS-40-12004]3 and escape [Indictment No. 96-GS-40-12010]. See ECF No. 16-9, p. 9, in C/A No. 9:10-1605.4 Petitioner filed a prior federal habeas petition on June 18, 2010; see C/A No. 9:10-1605; to which Respondent filed a return conceding that Petitioner was entitled to have his life without parole sentence for burglary first degree vacated pursuant to Graham v. Florida, 130 S.Ct. 2011 (2010). On June 3, 2011, the Honorable Henry M. Herlong, Jr., Senior United States District Judge, vacated the burglary first degree sentence, and directed the State to resentence Petitioner.5 See Order filed in C/A 9:10-1605, ECF No. 22. As a result, Petitioner was resentenced on April 25, 2013.

Petitioner then filed a second federal habeas petition on March 15, 2013. See C/A 9:13-734. Respondent moved for summary judgment on one ground (a matter of state law which Respondent contended was not cognizable), and moved for the remaining grounds to be dismissed, without prejudice, for failure to exhaust state court remedies, as Petitioner's appeal from his resentencing on April 25, 2013 was then pending. (C/A No. 9:13-734, ECF No. 11). Respondent filed in that action a copy of the sentencing sheet from the April 25, 2013 resentencing, and the subsequent notice of appeal. (C/A No. 9:13-734, ECF Nos. 11-1 and 11-2). The undersigned recommended dismissal of that 2013 Petition, without prejudice, for failure of the Petitioner to exhaust his state court remedies, specifically noting that any other ruling may subject the Petitioner to a successive action bar. (C/A No. 9:13-734, ECF No. 18 at 4 n.4). On August 16, 2013, the District Judge adopted the Report and Recommendation and dismissed the action without prejudice. (C/A No. 9:13-734, ECF No. 21).

With respect to Petitioner's continuing action in state court, appellate counsel filed a final brief in the appeal of Petitioner's April 25, 2013 resentencing on May 7, 2014. See Respondent's Memorandum in Support of Motion to dismiss without Prejudice, Attachment One. On March 18, 2015, the South Carolina Court of Appeals affirmed Petitioner's resentencing. See State v. Slocumb, 770 S.E.2d 436, 437 (S.C.Ct.App. 2015), reh'g denied (Apr. 24, 2015), cert. denied (Sept. 24, 2015). On September 24, 2015, the state Supreme Court denied Petitioner's petition for review of the Court of Appeals' opinion; however, Petitioner was assigned new counsel who was instructed to file a petition in the state Supreme Court's original jurisdiction addressing the issue of "the constitutionality of the length of petitioner's aggregate sentence in light of Graham v. Florida. . .". Tara Dawn Shurling, Esquire, was appointed to represent the Petitioner. See Respondent's Memorandum in Support of Motion to dismiss without Prejudice, Attachment Nine. The South Carolina Court of Appeals thereafter issued the Remittitur in Petitioner's direct appeal on September 29, 2015. See Respondent's Memorandum in Support of Motion to dismiss without Prejudice, Attachment Ten.

On April 19, 2016, Attorney Shurling filed a petition in the original jurisdiction of the state Supreme Court. The State filed its return on April 15, 2016. See Respondent's Memorandum in Support of Motion to dismiss without Prejudice, Attachments Eleven and Twelve. On March 24, 2017, the state Supreme Court granted the petition and ordered additional briefing. See Respondent's Memorandum in Support of Motion to dismiss without Prejudice, Attachment Thirteen. In the interim, Petitioner filed this third federal habeas petition on November 22, 2016. However, it is uncontested by the parties that Petitioner's petition filed in the original jurisdiction of the state Supreme Court is still pending. See Respondent's Memorandum in Support of Summary Judgment and Motion to dismiss without Prejudice; see also Petitioner's Memorandum in Opposition to Summary Judgment and Motion to dismiss without Prejudice.

Discussion

In his current pro se Petition for writ of habeas corpus filed in this United States District Court, Petitioner asserts an ineffective assistance jury deliberation claim, a clam relating to subject matter jurisdiction, and a claim relating to his sentencing. See Petition, with attached exhibits. While the federal court is charged with liberally construing pleadings filed by a pro se litigant to allow the development of a potentially meritorious case; See Cruz v. Beto, 405 U.S. 319 (1972), and Haines v. Kerner, 404 U.S. 519 (1972); the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990). Here, the Respondent has moved to dismiss the Petition without prejudice pursuant to Rule 12, Fed.R.Civ.P., for failure of the Petitioner to exhaust his state court remedies before filing this Petition, and after careful review of the facts and record presented, the undersigned is constrained to agree that the Respondent is entitled to dismissal on this ground.

Title 28 U.S.C. § 2254(b) provides that "[a]n application for writ of habeas corpus . . . shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State; or there is an absence of available State corrective process; or circumstances exist that render such process ineffective to protect the rights of the applicant." Therefore, Petitioner's federal remedy of a writ of habeas corpus under § 2254 can only be sought after he has exhausted all of his remedies in the courts of the State of South Carolina. Picard v. Connor, 404 U.S. 270 (1971); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-491 (1973). Respondent represents in his motion, and Petitioner does not contest, that Petitioner currently has a Petition pending in the original jurisdiction of the South Carolina Supreme Court on which no decision has yet been rendered. Further, no evidence has been presented to show an absence of available state process, and the undersigned does not find that the state process available is ineffective in protecting Petitioner's rights. Therefore, Petitioner has failed to exhaust his state court remedies, subjecting this case to dismissal.6

Conclusion

Based on the foregoing, it is recommended that this federal Petition be dismissed, without prejudice, for failure of the Petitioner to exhaust his state court remedies. Braden, 410 U.S. at 490-491; 28 U.S.C. § 2254(b) and (c); cf. Schnepp v. Oregon, 333 F.2d 288 (9th Cir. 1964) [Exhaustion not satisfied if post-conviction petition is pending in state court]. The parties are referred to the Notice Page attached hereto.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n 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.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Failure to timely file specific written objections to this Report and Recommendation will Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).