United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
GORDON BAKER, Magistrate Judge.
Shumpert ("Petitioner") is a state prisoner
incarcerated at Evans 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 and in forma pauperis. 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 unauthorized successive 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).
Petitioner's criminal case arose out of an armed robbery
one evening in May 2002 in Laurens County, South Carolina,
when a small group of individuals robbed two patrons of a
local laundromat. In November of 2002, Petitioner was
indicted for conspiracy to commit armed robbery, two counts
of armed robbery, and possession of a firearm during the
commission of a violent crime. On April 28, 2003, he received
a jury trial, at which both victims and one of the robbery
participants testified. The jury convicted him of conspiracy
and two counts of armed robbery, but acquitted him on the
weapons charge. Petitioner was sentenced to twenty-two (22)
years for each robbery charge to run concurrently and five
(5) years for the conspiracy charge.
direct appeal, Petitioner's counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738
(1967). Petitioner also filed a pro se brief
complaining of a Batson violation, prosecutorial
misconduct, bolstering of witnesses, improper seating of a
juror, and ineffective assistance of counsel. The South
Carolina Court of Appeals dismissed the appeal in an
unpublished opinion, State v. Shumpert, Op. No.
2005-UP-095 (S.C. Ct. App. filed Feb. 8, 2005). After
rehearing, remittitur was issued on March 15, 2003.
Petitioner did not seek certiorari in the South Carolina
24, 2005, Petitioner filed an application for state
post-conviction relief ("PCR"), alleging
ineffectiveness assistance of counsel because his counsel
allegedly did not object to an alleged Batson
violation and selection of an "all-white/elderly"
jury, did not present an alibi defense, and did not object to
a comment by the prosecutor alluding to the defense decision
to not present a defense. The state court held an evidentiary
hearing on January 18, 2006, with the petitioner personally
present and represented by new counsel. The state court
denied relief. Petitioner appealed to the South Carolina
Supreme Court, which affirmed the judgement on May 12, 2008.
See Shumpert v. State, 378 S.C. 62, 661
S.E.2d 369 (S.C. 2008). Remittitur was issued on May 29,
September 17, 2008, Petitioner filed a federal petition for
habeas corpus petition. Petitioner asserted four grounds for
relief: 1) trial counsel did not move for an alleged
Batson violation; 2) trial counsel did not present
an alibi defense; 3) trial counsel did not object to the
prosecutor's statement that "there's been
absolutely nothing presented for you not to believe Derrick
Mosely" (one of the witnesses for the prosecution); and
4) the state judge in the PCR proceeding did not allow an
affidavit of a juror into the record. The District Court
denied relief and dismissed the habeas petition with
prejudice on May 12, 2009. See Shumpert v. Rushton,
Case No. 8:08-cv-03172-HFF-BHH, 2009 WL 1346149 (D.S.C. May
March 11, 2010, Petitioner filed a second application for
state PCR, which was dismissed on January 22, 2015. The
remittitur of the South Carolina Supreme Court was filed on
April 14, 2016.
about May 9, 2016 (approximately seven years after his first
federal habeas petition was dismissed), Petitioner filed the
present (second) federal petition for writ of habeas corpus.
(DE# 1). In his own words, Petitioner alleges that: 1) the
"PCR judge erred by failing to find Derek Mosely's
admissions that Petitioner was not present at the scene of
crime constituted new evidence warranting a new trial;"
2) the "PCR judge erred by failing to find Derek
Mosely's testimony that he was incapacitated constituted
newly discovered evidence warranting new trial;" and 3)
"the falseness of the state's witness Derek
Mosley's 2002 statements and 2003 trial testimony was
coerced, constituting new evidence." ( Id. ).
Petitioner asks for a "new trial, reversal, or vacate
sentence." ( Id. at 15).
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. SeeColonial 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 ...