United States District Court, D. South Carolina, Rock Hill Division
PATRICK MICHAEL DUFFY, United States District Judge.
matter is before the Court on Petitioner Brian Daniels'
objections to a Report and Recommendation (“R &
R”) filed by United States Magistrate Judge Paige J.
Gossett (ECF Nos. 24 & 22). In her R & R, the
Magistrate Judge recommends that this Court dismiss
Petitioner's habeas petition because the United States
Court of Appeals for the Fourth Circuit has not permitted him
to file it. For the reasons stated herein, the Court
overrules Petitioner's objections and dismisses this
matter for lack of jurisdiction.
is serving a thirty-year prison sentence for his 1998
manslaughter conviction in South Carolina state court. After
pursuing collateral relief in state court, Petitioner filed a
petition in this Court in 2009, pursuant to 28 U.S.C. §
2254, challenging his conviction and sentence. This Court
dismissed the motion as time-barred. Daniels v.
Padula, No. 0:09-cv-755-PMD, 2010 WL 1051191 (D.S.C.
Mar. 19, 2010), appeal dismissed, 385 F.App'x
341 (4th Cir. 2010) (per curiam).
current petition, Petitioner again seeks relief under §
2254. He challenges a 2001 disciplinary sanction that the
state prison system imposed upon him for an escape
an initial review of the petition, the Magistrate Judge found
it was successive under 28 U.S.C. § 2244(b). Because the
Fourth Circuit has not given Petitioner permission to file a
successive § 2254 petition, the Magistrate Judge
concluded the petition should be dismissed.
timely filed objections to the R & R. This matter is
therefore ripe for review.
Magistrate Judge makes only a recommendation to this Court.
The R & R has no presumptive weight, and the
responsibility for making a final determination remains with
the Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). Parties may make written objections to the R & R
within fourteen days after being served with a copy of it. 28
U.S.C. § 636(b)(1). This Court must conduct a de novo
review of any portion of the R & R to which a specific
objection is made, and it may accept, reject, or modify the
Magistrate Judge's findings and recommendations in whole
or in part. Id. Additionally, the Court may receive
more evidence or recommit the matter to the Magistrate Judge
with instructions. Id. A party's failure to
object is taken as the party's agreement with the
Magistrate Judge's conclusions. See Thomas v.
Arn, 474 U.S. 140 (1985). Absent a timely, specific
objection-or as to those portions of the R & R to which
no specific objection is made-this Court “must
‘only satisfy itself that there is no clear error on
the face of the record in order to accept the
recommendation.'” Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed.R.Civ.P. 72 advisory committee's
argues the Magistrate Judge misconstrued his claim as a
second challenge of his 1998 manslaughter conviction and
sentence. Rather, Petitioner contends, his current claim
challenges the manner in which the state is executing that
sentence-“a totally different argument” than his
first habeas claim. (Objs., ECF No. 24, at 2.) Accordingly,
Petitioner argues the Magistrate Judge erred in concluding
that his current claim is successive.
the first component of Petitioner's objections, the
Magistrate Judge did not misconstrue Petitioner's claim.
The Magistrate Judge described the claim as a second
challenge of Petitioner's “confinement related
to” the 1998 conviction. The Magistrate Judge then
accurately described the crux of Petitioner's claim: that
the “disciplinary infraction . . . was imposed in
violation of the due process clause.” (R & R, ECF
No. 22, at 1). Because the Magistrate Judge correctly
understood the nature of Petitioner's claim, the Court
overrules Petitioner's objection.
larger contention is that his claim is not successive and
thus he did not need the Fourth Circuit's permission in
order to file his petition. A recent Fourth Circuit opinion
addresses the question underlying Petitioner's objection:
when, if ever, is a state prisoner's challenge to the
execution of his sentence successive under § 2244(b)?
See In re Wright, 826 F.3d 774 (4th Cir. 2016).
After confirming that § 2244(b)'s restrictions on
second or successive petitions apply to petitions challenging
the execution of state sentences, id. at 779, the
Fourth Circuit indicated that courts should use the
abuse-of-the-writ doctrine to determine whether such a
petition is second or successive, id. at 783, 784.
Under the doctrine, “new claims raised in subsequent
habeas petitions [are] ‘abusive'”-and thus
barred-“if those claims were available to the
petitioner at the time of a prior petition's
filing.” Id. at 784. That doctrine “is
not confined to instances where litigants deliberately
abandon claims; it also applies to instances where litigants,
through inexcusable neglect, fail to raise available
claims.” Id. (citation and quotation marks
Petitioner filed his previous § 2254 petition in 2009,
he could have challenged his 2001 disciplinary infraction.
However, he did not, and nothing suggests that
Petitioner's failure to raise the claim in 2009 is
excusable. The Court finds Petitioner's current §
2254 petition to be abusive and, therefore, successive.
Consequently, the Court overrules Petitioner's objection
and adopts the Magistrate Judge's ...