United States District Court, D. South Carolina, Charleston Division
Richard Mark Gergel United States District Court Judge
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending summary dismissal
without prejudice of Petitioner's unauthorized successive
petition for habeas relief. The Court adopts the Report and
Recommendation and dismisses the petition without prejudice
as an unauthorized successive petition.
2003, Petitioner was convicted of armed robbery and
conspiracy in South Carolina state court and was sentenced to
a term of twenty-two years for armed robbery and a term of
five years for conspiracy. On September 17, 2008, Petitioner
timely filed a petition for habeas relief from that
conviction and sentence. The District Court denied relief and
dismissed the petition with prejudice on May 12, 2009.
Shumpert v. Rushton, Civ. No. 8:08-3172-HFF-BHH,
2009 WL 1346149 (D.S.C. May 12, 2009). On May 9, 2016,
Petitioner filed the present petition for habeas relief from
that same conviction and sentence. On May 18, 2016, the
Magistrate Judge recommended summary dismissal of the present
petition. (Dkt. No. 6.) Petitioner timely filed objections to
the Report and Recommendation. (Dkt. No. 8.)
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination
of those portions of the Report and Recommendation to which
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
proper objection is made to a particular issue, "a
district court is required to consider all arguments directed
to that issue, regardless of whether they were raised before
the magistrate." United States v. George, 971
F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he
district court's decision whether to consider additional
evidence is committed to its discretion, and any refusal will
be reviewed for abuse." Doe v. Chao, 306 F.3d
170, 183 & n.9 (4th Cir. 2002). "[A]ttempts to
introduce new evidence after the magistrate judge has acted
are disfavored, " though the district court may allow it
"when a party offers sufficient reasons for so
doing." Caldwell v. Jackson, 831 F.Supp.2d 911,
914 (M.D. N.C. 2010) (listing cases).
Court agrees with the Magistrate Judge that the present
petition is an unauthorized successive petition. Indeed, in
his objections, Petitioner admits that this is a successive
petition. (Obj. 4.) There is no dispute that Petitioner has
not obtained permission from the Fourth Circuit to file a
successive petition. The Court therefore has no authority to
consider the petition. 28 U.S.C. § 2244(b)(3)(A).
objections, Petitioner asserts that he has filed this
successive petition because of newly discovered evidence-a
witness against Petitioner has purportedly recanted. (Obj.
4.) Petitioner argues that § 2244(b)(2)(B) therefore
authorizes the Court to consider his petition.
(Id.4-6.) Section 2244(b)(2)(B) permits
consideration of a successive habeas petition where "the
factual predicate for the claim could not have been
discovered previously through the exercise of due
diligence" and "would be sufficient to establish by
clear and convincing evidence that, but for constitutional
error, no reasonable factfinder would have found the
applicant guilty of the underlying offense." Petitioner
misapprehends that exception to 28 U.S.C. § 2244(b), the
bar against successive habeas petitions, as an exception to
28 U.S.C. § 2244(3)(A), the requirement for leave from
the United States Court of Appeals for Fourth Circuit.
Permission from the Fourth Circuit is required for petitions
falling within the § 2244(b)(2)(B) exception that
Petitioner cites. Successive petitions not within that
exception are simply barred. Thus, if Petitioner wishes to
pursue the claims stated in his most recent habeas petition,
he must first obtain authorization to file a successive
petition pursuant to 28 U.S.C. § 2254 from the Fourth
Circuit. Absent authorization from the Fourth Circuit, this
Court lacks jurisdiction to consider a successive habeas
petition. Burton v. Stewart, 549 U.S. 147, 153
foregoing reasons, the Court ADOPTS the Report and
Recommendation (Dkt. No. 6) as the Order of the Court and
DISMISSES WITHOUT PREJUDICE the Petition (Dkt. No. 1).