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Coleman v. Bush

United States District Court, D. South Carolina

August 20, 2014

Richard L. Coleman, Petitioner,
v.
Dennis Bush, Warden, Respondent.

REPORT AND RECOMMENDATION

PAIGE J. GOSSETT, Magistrate Judge.

The petitioner, Richard L. Coleman ("Petitioner"), a self-represented state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner files this action in forma pauperis under 28 U.S.C. § 1915. This Petition is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) DSC. Having reviewed the Petition in accordance with applicable law, the court concludes that it should be summarily dismissed without prejudice and without requiring the Respondent to file a return.

I. Factual and Procedural Background

Petitioner seeks habeas relief from convictions in the Fairfield County General Sessions Court for burglary second degree, grand larceny, burglary first degree, criminal sexual conduct first degree, and murder. (ECF No. 1 at 1.) Petitioner indicates that, subsequent to a guilty plea on April 20, 1992, he received sentences to include life imprisonment. (Id.) This is the second § 2254 habeas corpus action filed by Petitioner in this court challenging his 1992 Fairfield County convictions and sentences.[1] See Coleman v. Harrison, C/A No. 9:02-1056-HMH (D.S.C. Apr. 11, 2002). Petitioner's prior petition for a writ of habeas corpus resulted in summary judgment in favor of the Respondents. Id . at ECF No. 35. Petitioner appealed the denial of federal habeas relief to the United States Court of Appeals for the Fourth Circuit, which dismissed the appeal on May 5, 2003. See Coleman v. Harrison, 62 F.Appx. 65 (4th Cir. 2003).

The instant Petition alleges a violation of Petitioner's constitutional right to appeal a family court order waiving jurisdiction of his charges to general sessions court. (ECF No. 1 at 5-7, 15-16.)

II. Discussion

A. Standard of Review

Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case pursuant to the Rules Governing § 2254 Cases, 28 U.S.C. § 2254; the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214; and in light of the following precedents: Denton v. Hernandez , 504 U.S. 25 (1992); Neitzke v. Williams , 490 U.S. 319, 324-25 (1989); Haines v. Kerner , 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr. , 64 F.3d 951 (4th Cir. 1995) (en banc); Todd v. Baskerville , 712 F.2d 70 (4th Cir. 1983).

This court is required to liberally construe pro se petitions. Erickson v. Pardus , 551 U.S. 89 (2007). Pro se petitions are held to a less stringent standard than those drafted by attorneys, id.; Gordon v. Leeke , 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. Hughes v. Rowe , 449 U.S. 5, 9 (1980); Cruz v. Beto , 405 U.S. 319 (1972). When a federal court is evaluating a pro se petition the petitioner's allegations are assumed to be true. Erickson , 551 U.S. at 93 (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555-56 (2007)).

However, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs. , 901 F.2d 387 (4th Cir. 1990). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so; however, a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett , 174 F.3d 1128 (10th Cir. 1999), construct the petitioner's legal arguments for him, Small v. Endicott , 998 F.2d 411 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton , 775 F.2d 1274, 1278 (4th Cir. 1985).

B. Analysis

The instant case should be summarily dismissed as a successive § 2254 petition. "[A]n individual may not file a second or successive § 2254 petition for a writ of habeas corpus or § 2255 motion to vacate sentence without first receiving permission to do so from the appropriate circuit court of appeals." In re Vial , 115 F.3d 1192, 1194 (4th Cir. 1997); see also 28 U.S.C. § 2244(b). The issue of successiveness of a habeas petition may be raised by the court sua sponte. See Rodriguez v. Johnson , 104 F.3d 694, 697 n.1 (5th Cir. 1997); Clark v. McCall, C/A No. 0:13-2386-TLW, 2013 WL 5914114, at *2 (D.S.C. Oct. 31, 2013) (adopting and incorporating Report and Recommendation). Thus, Petitioner must obtain a Pre-Filing Authorization from the United States Court of Appeals for the Fourth Circuit before this court may consider a second or successive § 2254 petition. See Gonzalez v. Crosby , 545 U.S. 524, 530 (2005) ("[B]efore the district court may accept a successive petition for filing, the court of appeals must determine that it presents a claim not previously raised that is sufficient to meet § 2244(b)(2)'s new-rule or actual-innocence provisions."); see also In re Williams , 330 F.3d 277 (4th Cir. 2003). As Petitioner provides no indication that he received such permission from the Fourth Circuit prior to filing this Petition, it is subject to summary dismissal.[2] Petitioner can obtain the forms necessary to seek authorization to file a second or successive habeas petition from the Clerk's Office of the Fourth Circuit Court of Appeals.

III. Conclusion

Accordingly, the court recommends that the instant Petition for writ of habeas corpus be dismissed without prejudice and without requiring the Respondent to file a return.


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