United States District Court, D. South Carolina
Muhammad Al-Mujahidin, also known as or formerly known as John Hamilton, Petitioner,
Leroy Cartledge, Warden, Respondent
Muhammad Al-Mujahidin, also known as John Hamilton, Petitioner, Pro se, McCormick, SC.
REPORT AND RECOMMENDATION
Bristow Marchant, United States Magistrate Judge.
Petitioner, Muhammad Al-Mujahidin, also known or formerly known as John Hamilton, a state prisoner in the McCormick Correctional Institution of the South Carolina Department of Corrections, has filed this Petition for Writ of Habeas Corpus pro se and in forma pauperis, pursuant to 28 U.S.C. § 2241. In this Petition, Petitioner seeks to challenge his 1998 convictions for assault and battery with intent to kill (ABWIK) and possession of contraband for which he was sentenced to a term of life imprisonment without the possibility of parole. Petition, ECF No. 1 at 2-3.
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in the above-captioned case pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (AEDPA), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se petitions are also held to a less stringent standard than those drafted by attorneys, 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. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163(1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978) (citing Rice v. Olson, 324 U.S. 786, 791-92, 65 S.Ct. 989, 89 L.Ed. 1367 (1945)): Holiday v. Johnston, 313 U.S. 342, 350, 61 S.Ct. 1015, 85 L.Ed. 1392(1941)).
Nonetheless, this Court is charged with screening Petitioner's lawsuit to determine if " it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court; " Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts; and 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. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Such is the case here.
Petitioner states that he was convicted of ABWIK and possession of contraband and sentenced to life without parole on November 12, 1998. ECF No. 1 at 2-3. Petitioner seeks to have his sentence vacated, claiming that his sentence is unconstitutional, violates his Eighth and Fourteenth Amendment rights, violates his due process rights, and is a " fundamental miscarriage of justice." Id. at 9-10. However, a review of the docket of this Court reveals that Petitioner previously filed a § 2254 petition in this Court on January 24, 2008. In an order dated December 10, 2008, the Honorable David C. Norton, United States District Judge, dismissed that petition with prejudice for lack of prosecution. See Mujahidin v. Warden, C/A No. 9: 08-178-DCN (D.S.C.).
Based on the foregoing, the Petition filed in this case is subject to summary dismissal because it is successive and there is no indication that Petitioner requested and received permission from the United States Fourth Circuit Court of Appeals before he submitted it to this Court. See Slack v. McDaniel, 529 U.S. 473, 485-89, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (to qualify as a " successive" petition, prior petition must have been adjudicated on the merits). " It is well settled that habeas corpus petitions submitted subsequent to a dismissal of a previous petition with prejudice for lack of prosecution will be considered successive."
Fishburne v. McCall, C/A No. 8; 13-2453-TMC, 2013 WL 5797673 (D.S.C. Oct. 28, 2013); see also Fed.R.Civ.P. 41(b) [unless otherwise specifically stated, dismissal for failure to prosecute is with prejudice];
Plaut v. Spendthrift Farm. Inc., 514 U.S. 211, 228, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) [" The rules of finality, both statutory and judge made, treat a dismissal on statute-of-limitations grounds the same way they treat a dismissal for failure to state a claim, for failure to prove substantive liability, or for failure to prosecute: as a judgment on the merits." ].
Although Petitioner is attempting to bring this action pursuant to 28 U.S.C. § 2241, it presents claims more properly asserted under 28 U.S.C. § 2254, as Petitioner is in custody pursuant to a state court judgment and he alleges that his constitutional rights were violated. See 28 U.S.C. § 2254(a). Because Petitioner has already filed a petition under § 2254, he presumably hoped that by styling his current petition as being brought pursuant to pursuant to § 2241 he would avoid the statutory requirement to seek leave from the Court of Appeals to authorize this district court to consider his successive petition. However, Petitioner cannot evade the procedural requirements of 28 U.S.C. § 2254 by filing an action purporting to be a § 2241 petition. Thomas v. Crosby, 371 F.3d 782, 787 (11th Cir. 2004); see Ferrell v. Warden of Lieber Corr. Inst., C/A No. 9: 10-1223-CMC-BM, 2010 WL 3258297, at *2 (D.S.C. June 28, 2010), adopted, 2010 WL 3258295 (D.S.C. Aug. 16, 2010). If this were not the case, then " a state prisoner could simply opt out of its  operation by choosing a different label for his petition." Id. (citing Medberry v. Crosby, 351 F.3d 1049, 1060-61 (11th Cir. 2003)). Cf. Wade v. Robinson, 327 F.3d 328, 331 (4th Cir. 2003) [Section 2244(d)(1), the one year statute of limitations, " applies to claims challenging any aspect of custody, so long as the petitioner is in custody pursuant to a state court judgment" ]. Hence, Petitioner cannot thwart Congress' statutory rules governing habeas petitions through the selection of differing labels for his petitions.
Under the AEDPA, an individual may not file a second or successive § 2254 petition for a writ of habeas corpus (or the equivalent thereof) without first receiving permission to do so from the appropriate circuit court of appeals,  and the " gatekeeping" mechanism of 28 U.S.C. § 2244(b)(3)(A) provides that, " [b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. See In re Williams, 364 F.3d 235, 238 (4th Cir, 2004) [the " initial determination of whether a claim satisfies" the requirements of § 2244(b)(2) " must be made by a court of appeals" ]; In re Fowlkes, 326 F.3d 542, 544 (4th Cir. 2003) [" Since Fowlkes has previously filed a section 2254 motion, he may only file a successive section 2254 motion if he receives authorization from this court [the Fourth Circuit Court of Appeals] under the standard established in section 2244(b)(3)(C)." ]; United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003) [" In the absence of pre-filing authorization [from the court of appeals], the district court lacks jurisdiction to consider an application containing abusive or repetitive claims." ].
Here, there is no indication that Petitioner has received permission from the Fourth Circuit Court of Appeals before filing the present Petition. Consequently, this Court has no jurisdiction to consider the instant Petition. Cf. United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003); In re Williams, 444 F.3d at 236-37 (4th Cir. 2006).
Based on the foregoing, it is recommended that the instant Petition for a Writ of Habeas Corpus be summarily dismissed without prejudice and without requiring Respondent to file a return. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656 (4th Cir. 2006) [district courts are charged with the duty to independently screen initial filings and ...