United States District Court, D. South Carolina
Stefen E. Harris, Petitioner,
David Dunlap, Warden, Respondent.
REPORT AND RECOMMENDATION
J. GOSSETT, Magistrate Judge.
petitioner, Stefen E. Harris ("Petitioner"), a
self-represented state prisoner, filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. This Petition
is before the court pursuant to 28 U.S.C. § 636(b) and Local
Civil Rule 73.02(B)(2)(c) (D.S.C.). 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
Factual and Procedural Background
indicates he was convicted of trafficking crack and
possession of a weapon in the Richland County Court of
General Sessions in 1996. (ECF No. 1 at 1.) He claims he was
sentenced to an aggregate term of thirty years'
imprisonment. (Id.) In 2001, Petitioner filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this
court to challenge his 1996 convictions. Harris v. State of
S.C., C/A No. 9:01-3994-HMH. The court granted the
respondent's motion for summary judgment and dismissed
the petition. Id.
now brings this petition for a writ of habeas corpus pursuant
to § 2254. (ECF No. 1.) In the Petition, Petitioner alleges
the South Carolina Department of Corrections
("SCDC") unilaterally recalculated his sentence and
changed his max-out date in violation of the Fourteenth
Amendment's Equal Protection and Due Process clauses.
(Id. at 6.)
Standard of Review
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
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
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).
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); Davis v. McFadden, C/A
No. 0:14-2662-RMG, 2014 WL 5305931, at *4 (D.S.C. Oct. 15,
2014) (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. 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.
in light of his pro se status, the court will allow
Petitioner fourteen (14) days from the date of this order to
file an amended petition seeking habeas corpus ...