Stanley Ballenger v. J. Dale Owens ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1599
STANLEY M. BALLENGER, a/k/a Stanley Mark Ballenger, former
#151010,
Plaintiff - Appellant,
v.
J. DALE OWENS, L, CPL, State Trooper, SC Hwy Patrol Ace
Team; J. G. STEVENS, L, CPL, State Trooper; C. NICHOLAS
LAVERY, Esquire; JACK H. LYNN, Esquire,
Defendants – Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. J. Michelle Childs, District
Judge. (8:10-cv-02294-JMC)
Argued: January 29, 2013 Decided: March 5, 2013
Before WILKINSON, MOTZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David L. Neal, Hillsborough, North Carolina, for Appellant.
Andrew Lindemann, DAVIDSON & LINDEMANN, PA, Columbia, South
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stanley M. Ballenger (“Appellant”) initiated this
action pro se against his former defense attorney, a South
Carolina state prosecutor, and two South Carolina state troopers
under 42 U.S.C. § 1983, alleging, among other things, that an
unconstitutional search and seizure of his vehicle led to the
discovery of illegal drugs and a firearm on the basis of which
Appellant was charged in state court, pleaded guilty, and was
ultimately sentenced to imprisonment. The district court
dismissed Appellant’s suit for failure to satisfy the “favorable
termination” rule announced in Heck v. Humphrey, 512 U.S. 477(1994).
Appellant now contends the favorable termination
requirement does not bar his § 1983 suit because he pleaded
guilty to the underlying charges, citing Haring v. Prosise, 462
U.S. 306 (1983), and that, as such, a civil attack on the
alleged constitutional violations does not impugn his
conviction. Appellant raises this issue for the first time on
appeal. Because it was not raised in the district court, we
conclude Appellant waived appellate review. Because Appellant
waived this central argument, and we find any other arguments he
may have raised to be without merit, we affirm.
2
I.
This court is not unfamiliar with Mr. Ballenger. He
previously filed a § 1983 suit in 2002 against the State of
South Carolina and South Carolina State Trooper J. Dale Owens
based on the same operative facts contained in his present
action. See Ballenger v. Owens, 352 F.3d 842, 843-44 (4th Cir.
2003) (“Ballenger I”).
In brief, Appellant was stopped by Trooper Owens for
following too closely behind another vehicle while driving in
South Carolina. After detecting the odor of marijuana, Trooper
Owens searched Appellant’s vehicle and discovered illegal drugs
and a firearm. Appellant pleaded guilty to a drug trafficking
offense and a firearm offense and was sentenced on November 26,
2011 to a 10-year term of imprisonment. 1
While he made no direct appeal, Appellant subsequently
sought post-conviction relief in state and federal court and was
denied. See Ballenger v. McMaster, 146 F. App’x 697 (4th Cir.
2005); Ballenger v. Mauney, 326 F. App’x 224 (4th Cir. 2009).
1
Appellant contends that, on the advice of counsel, he pled
guilty before the state court considered his motion to suppress
the fruits of the allegedly unconstitutional search. Appellant
further notes that South Carolina does not permit the entry of
conditional guilty pleas. See State v. Inman, 395 S.C. 539,
555, 720 S.E.2d 31, 40 (2011).
3
In Ballenger I, the district court dismissed
Appellant’s § 1983 complaint without prejudice, concluding that
1) his action against the State of South Carolina and Trooper
Owens in his official capacity was barred by the Eleventh
Amendment; and 2) his action against Trooper Owens in his
individual capacity was barred by Heck because his criminal
conviction had not been set aside and a favorable judgment in
his § 1983 suit would necessarily imply the invalidity of that
conviction. 2 We affirmed. See Ballenger I, 352 F.3d 842.
Nearly seven years later, Appellant commenced the
present action pro se on September 1, 2010 -- a § 1983 suit
largely duplicative of the complaint dismissed in Ballenger I.
Appellant alleges that Trooper Owens, among others, violated his
Fourth Amendment rights by stopping and searching his vehicle.
Following an automatic referral from the district
court pursuant to the local rules, the magistrate judge issued a
Report and Recommendation (“R&R”) on September 8, 2010,
recommending that the district court dismiss the action. In the
R&R, the magistrate judge concluded that Appellant’s claims
2
The Supreme Court held in Heck that “where success in a
prisoner’s § 1983 damages action would implicitly question the
validity of conviction or duration of sentence, the litigant
must first achieve favorable termination of his available state,
or federal habeas, opportunities to challenge the underlying
conviction or sentence.” Muhammad v. Close, 540 U.S. 749, 751
(2004).
4
against Trooper Owens and an additional trooper were barred by
Heck. 3 Appellant lodged objections to the R&R, which the
district court found to be largely “non-specific, unrelated to
the dispositive portions of the Magistrate Judge’s Report and
Recommendation,” or to “merely restate his claims.” J.A. 130. 4
On February 3, 2011, the district court adopted the R&R and
dismissed Appellant’s complaint with prejudice. Appellant then
noticed this appeal.
II.
We review de novo the dismissal of Appellant’s
complaint. See Minor v. Bostwick Laboratories, Inc., 669 F.3d
428, 432 (4th Cir. 2012).
III.
Appellant contends that the Heck favorable termination
rule does not bar his § 1983 action because, in his view, a
conviction by way of a guilty plea cannot be undermined by a
3
The magistrate judge also concluded that Appellant’s claim
against the state prosecutor was barred by the doctrine of
prosecutorial immunity and that his claim against his former
defense attorney was not cognizable in a § 1983 suit because the
attorney was not a state actor. Appellant does not challenge on
appeal the dismissal of his claims against these parties.
4
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
5
subsequent determination that the evidence supporting the
criminal conviction was obtained in violation of the
Constitution. 512 U.S. 477. He cites for support the pre-Heck
decision Haring v. Prosise, 462 U.S. 306. He argues that
Haring, which he believes stands for the proposition that a
claim for damages based on an unconstitutional search and
seizure does not imply the invalidity of a conviction obtained
by guilty plea, id. at 318-22, is reconcilable with the commands
of Heck. Appellee responds that because Appellant did not raise
the issue in his objections to the R&R in the district court,
the issue is waived. We agree.
The law of our circuit is clear: “[A] party . . .
waives a right to appellate review of particular issues by
failing to file timely objections specifically directed to those
issues.” United States v. Midgette, 478 F.3d 616, 621 (4th Cir.
2007). Therefore, “to preserve for appeal an issue in a
magistrate judge’s report, a party must object to the finding or
recommendation on that issue with sufficient specificity so as
reasonably to alert the district court of the true ground for
the objection.” Id. at 622.
To conclude otherwise would defeat the purpose of
requiring objections. We would be permitting a party
to appeal any issue that was before the magistrate
judge, regardless of the nature and scope of
objections made to the magistrate judge’s report.
Either the district court would then have to review
every issue in the magistrate judge’s proposed
6
findings and recommendations or courts of appeals
would be required to review issues that the district
court never considered. In either case, judicial
resources would be wasted and the district court’s
effectiveness based on help from magistrate judges
would be undermined.
Id.
In this case, Appellant’s objections to the R&R failed
to raise the argument that the favorable termination rule does
not apply to a plaintiff whose underlying conviction was
obtained by a guilty plea. Instead, Appellant asserted in his
objections to the R&R, and argues at least in passing on appeal,
that he was unable to satisfy the favorable termination rule
because, having completed his sentence, he is no longer in
custody, citing Wilson v. Johnson, 535 F.3d 262 (4th Cir. 2008). 5
Nothing in his objections suggests Appellant alerted the
district court to the challenging question of law under Haring
5
Wilson indicated that Heck does not bar a § 1983 action
where “a prisoner could not, as a practical matter, seek habeas
relief.” Wilson, 535 F.3d at 268. Unlike the plaintiff in
Wilson, who had a window of only four months to meet the
favorable termination requirement, which he pursued until his
release, Appellant here pleaded guilty and was sentenced to 10
years imprisonment. Not only was this sufficient time to pursue
post-conviction relief, Appellant actually did so and was
unsuccessful. See Ballenger I, 352 F.3d at 847 (observing that
Ballenger’s post-conviction proceedings were pending); Ballenger
v. McMaster, 146 F. App’x 697 (4th Cir. 2005); Ballenger v.
Mauney, 326 F. App’x 224 (4th Cir. 2009). In short, the concern
that drove our court in Wilson to find an exception to Heck --
that a habeas-ineligible former prisoner lacked access to a
federal forum -- is simply not present here.
7
he now presents for the first time on appeal. Indeed, the
principal decision on which Appellant now relies, Haring v.
Prosise, 462 U.S. 306, first appeared in his opening brief
before this court. See Appellant’s Br. at 1. Accordingly, we
conclude that Appellant waived appellate review.
IV.
For the foregoing reasons, the decision of the
district court is
AFFIRMED.
8