United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
GORDON BAKER, Magistrate Judge.
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. Â§ 2254 and is proceeding pro
se . This matter is before the Court pursuant to 28
U.S.C. Â§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
Â§ 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:
Pro Se Habeas Review
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).
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, Â¶ 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
indicates that he has filed three applications for
post-conviction relief ("PCR") in state court. (
Id . at 4-5, Â¶ 11). 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) a second application
for PCR on April 24, 2013 (Case No. 2013-CP-23-02300)
(alleging ineffective assistance of both trial and PCR
counsel); 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 Â¶Â¶ 10-11).
March 27, 2014, Petitioner filed a first federal petition for
a writ of habeas corpus pursuant to 28 U.S.C. Â§ 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).
April 28, 2016, Petitioner filed the present (second)
petition for a writ of habeas corpus pursuant to 28 U.S.C. Â§
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).
Court must screen this Â§ 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 Â§
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.
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.
AEDPA provides that "[a] claim presented in a second or
successive habeas corpus application under section 2254 that
was not presented in a prior ...