United States District Court, D. South Carolina
Stefen E. Harris, Petitioner,
David Dunlap, Warden, Respondent.
E Harris, Petitioner, Pro Se.
REPORT AND RECOMMENDATION
J. GOSSETT, Magistrate Judge.
petitioner, Stefen E. Harris ("Petitioner"), a
self-represented state prisoner, filed an amended petition
for a writ of habeas corpus pursuant to 28 U.S.C. Â§ 2241.
This Amended Petition is before the court pursuant to 28
U.S.C. Â§ 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.).
Having reviewed the Amended 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 return.
Factual and Procedural Background
indicates that in 1996 he was convicted in the Richland
County Court of General Sessions of trafficking crack cocaine
and possession of a weapon. (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. Â§ 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.
March 16, 2016, Petitioner filed a petition for a writ of
habeas corpus pursuant to Â§ 2254 in this case. (ECF No. 1.)
In the Petition, Petitioner alleged 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.) This court summarily
dismissed the Â§ 2254 petition because Petitioner failed to
ask permission from the United States Court of Appeals for
the Fourth Circuit to file a second or successive petition.
(ECF No. 17.) However, the order dismissing the petition
granted Petitioner leave to file an amended petition seeking
habeas corpus relief pursuant to Â§ 2241. (Id.) Petitioner
filed this Amended Petition pursuant to Â§ 2241 on July 7,
2016. (ECF No. 21.) For the reasons set forth below, the
court finds that the Amended Petition should also be
dismissed for failure to seek permission from the Fourth
Circuit to file a second or successive petition.
Standard of Review
corpus proceedings are the proper mechanism for a prisoner to
challenge the legality or duration of his custody. See
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
"[I]t is well established that defendants convicted in
federal court are obliged to seek habeas relief from their
convictions and sentences through Â§ 2255." Rice v.
Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In
re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). In
contrast, a motion filed under Â§ 2241 is typically used to
challenge the manner in which a sentence is executed. See
In re Vial, 115 F.3d at 1194 n.5.
the amendment to seek relief under Â§ 2241, the instant case
should nevertheless be summarily dismissed as a successive
petition. Following this court's June 6 Order, the United
States Court of Appeals for the Fourth Circuit issued an
opinion explaining that prisoners in custody pursuant to a
judgment of a state court may only seek habeas relief under Â§
2254, even if they are challenging the execution of their
sentence. See In re Wright, ___ F.3d ___, 2016 WL 3409851
(4th Cir. June 21, 2016). The Fourth Circuit consequently
found that even if the petition is filed pursuant to Â§ 2241,
those petitions are subject to the second or successive
authorization requirement set forth in Â§ 2244(b)(3).
Id . Accordingly, even though Petitioner filed an
amended petition pursuant to Â§ 2241, the court must apply the
authorization requirement of Â§ 2244(b)(3) to his petition.
individual may not file a second or successive Â§ 2254
petition for a writ of habeas corpus or Â§ 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. Â§ 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, under Â§
2244(b), Petitioner must obtain a Pre-Filing Authorization
from the Fourth Circuit before this court may consider a
second or successive habeas corpus 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 Â§
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 Amended 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.
the court recommends that the Amended Petition for a writ of
habeas corpus be dismissed without prejudice and without