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Collins v. Cartledge

United States District Court, D. South Carolina

May 16, 2016

Steven Collins, #141257, Petitioner,
v.
Leroy Cartledge, Warden of McCormick Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER, Magistrate Judge.

         Steven Collins ("Petitioner") is a state prisoner incarcerated at McCormick Correctional Institution in South Carolina. He has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and is proceeding pro se . This matter is before the Court pursuant to 28 U.S.C. §636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.) for initial screening. Having reviewed the petition and applicable law, the Magistrate Judge recommends that this § 2254 petition should be summarily dismissed, without prejudice to the Petitioner's ability to seek permission from the Fourth Circuit Court of Appeals to file a successive petition, for the following reasons:

         I. Pro Se Habeas Review

         Under established local procedure in this judicial district, the Magistrate Judge has carefully reviewed the petition pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 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).

          Pro se pleadings are given liberal construction and are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). Courts liberally construe pro se claims to allow the development of a potentially meritorious case. Haines v. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). However, "[t]he special judicial solicitude' with which a district court should view... pro se complaints does not transform the court into an advocate. United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012), cert. denied, 133 S.Ct. 2401 (2013). Only those questions which are squarely presented to a court may properly be addressed." Weller v. Dept. of Soc. Servs. for City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990). Giving "liberal construction" does not mean that the Court can ignore a petitioner's clear failure to allege facts that set forth a cognizable claim. "Principles requiring generous construction of pro se complaints... [do] not require... courts to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986).

         II. Background

         Petitioner was indicted at the February 2006 term of the Greenville County Grand Jury for armed robbery (Indictment No. 2006-GS-23-1381, count 1) and possession of a weapon during commission of a violent crime (Indictment No. 2006-GS-23-1381, count 2). After a jury trial in 2006, Petitioner was convicted of both offenses and was sentenced to life without parole and a concurrent five year term of imprisonment. (DE# 1 at 2, ¶ 1). On direct appeal, his appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). The South Carolina Court of Appeals dismissed the appeal. State v. Collins, Case No. 2009-UP-479, 2009 WL 9530074 (S.C.App., Oct. 14, 2009). Remittitur was issued on October 30, 2009.

         Petitioner indicates that he has filed three applications for post-conviction relief ("PCR") in state court. ( Id . at 4-5, ¶ 11).[1] Petitioner filed: 1) a first application for PCR on December 10, 2009 (Case No. 2009-CP-23-10469) (alleging ineffective assistance of counsel and prosecutorial misconduct);[2] 2) a second application for PCR on April 24, 2013 (Case No. 2013-CP-23-02300) (alleging ineffective assistance of both trial and PCR counsel);[3] and a third application for PCR on September 10, 2015 (Case No. 2015-CP-23-1989) (again alleging ineffective assistance of both trial and PCR counsel). Petitioner indicates that the state court denied PCR relief on all three applications. (DE# 1 at ¶¶ 10-11).[4]

         On March 27, 2014, Petitioner filed a first federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raised the following issues: (1) ineffective assistance of counsel (pursuant to Lafler v. Cooper, 123 S.Ct. 1276 (2012) based on rejection of plea offer and receiving life without parole); and (2) timeliness of petition ( i.e. whether the circumstances preventing timely filing were beyond his control and unavoidable, despite his alleged diligence). This District Court denied relief and dismissed the petition with prejudice. See Collins v. Cartledge, Case No. 2:14-cv-1200-BHH-WWD, 2014 WL 8396824 (D.S.C. Nov. 14, 2014), adopted by 2015 WL 1518144 (D.S.C. March 30, 2015).

         On April 28, 2016, Petitioner filed the present (second) petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (DE# 1). He alleges that: 1) the trial court should have granted a mistrial; 2) the trial court erred because "the police failed to show any reason to suspect or arrest Defendant at the time of his arrest;" 3) trial counsel was ineffective because he allegedly failed to investigate certain physical evidence (a fingerprint from a box cutter); and 4) trial counsel was ineffective because he allegedly "failed to object when the trial judge did not charge criminal intent." ( Id . at 6-11).

         III. Discussion

         This Court must screen this § 2254 petition 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. Review of the record reflects that this is Petitioner's second § 2254 petition regarding the same conviction and sentence. This Court may properly take judicial notice of public records, including the Court's own docket. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.1989); Assa'ad-Faltas v. South Carolina, 2012 WL 6103204 (D.S.C.), adopted by 2012 WL 6106421 (D.S.C.) ("the District Court clearly had the right to take notice of its own files and records"). Petitioner does not indicate, and the record does not reflect, that he has obtained permission from the Fourth Circuit Court of Appeals to file a second or successive petition for habeas corpus.

         For a second petition to be "successive, " the dismissal of the first habeas petition must have been "on the merits, " rather than for instance, a dismissal for lack of exhaustion. Slack v. McDaniel, 529 U.S. 473, 485-89 (2000); Harvey v. Horan, 278 F.3d 370, 379 (4th Cir. 2002), abrogated on other grounds by Skinner v. Switzer, 131 S.Ct. 1289 (2011). The record reflects that the Magistrate Judge issued a Report and Recommendation on the merits of Petitioner's claims, including Petitioner's allegations of ineffectiveness of counsel. This Court considered the merits of the Petitioner's first habeas petition at considerable length and dismissed the case with prejudice.

         The AEDPA provides that "[a] claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior ...


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