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Pierce v. Reynolds

United States District Court, D. South Carolina, Charleston Division

December 15, 2016

Thomas Giniski Pierce, # 201290, Petitioner,
v.
C. Reynolds, Warden, Respondent.

          REPORT AND RECOMMENDATION

          Mary Gordan Baker, Judge

         Thomas Giniski Pierce (“Petitioner”) is a state prisoner at Lee Correctional Institution in Bishopville, South Carolina. He proceeding pro se and has paid the $5 filing fee (DE# 3, receipt number SCX300060364). He has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (DE# 1, Petition, 177 pages including attachments). Pursuant to the provisions of 28 U.S.C. §636(b)(1)(B), and Local Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review the petition and submit findings and recommendations to the United States District Judge. Having reviewed the petition and applicable law, the Magistrate Judge recommends that this 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, based upon the following findings of fact and conclusions of law:

         I. Background

         Petitioner was indicted by the Grand Jury for Greenville County, South Carolina, for murder. Prior to his plea hearing, he waived presentment on an indictment for the charge of voluntary manslaughter. (See State v. Pierce, Greenville County Court of Common Pleas Case No. 2009-GS-23-3739A; see also DE# 1-2 at 7, Exhibit: Transcript of Record, “He waives the finding of a true bill by the Grand Jury and consents to sentencing on this day.”). On April 27, 2009, Petitioner pleaded guilty to voluntary manslaughter. The state court deferred sentencing until Plaintiff could complete his duty under the Plea Agreement to cooperate with the State of South Carolina in the prosecution of his co-defendant, Zachary Arnold. (DE# 1-2 at 19, Exhibit: Transcript of Record, “this sentencing will be deferred”). Petitioner was sentenced to twenty-four (24) years imprisonment. (DE# 1 at 3, ¶ 3f; DE# 1-2 at 26, state sentencing sheet). Petitioner did not appeal.

         On August 3, 2011, Petitioner (through counsel) filed an application for state post-conviction relief (“PCR”) in the Greenville County Court of Common Pleas. Petitioner argued that his counsel had been “ineffective” on thirty-three (33) grounds. The state court held a hearing at which the Petitioner testified. (DE# 1-2 at 42-92, Transcript). The state court denied relief on August 1, 2013. (DE# 1-3 at 2-10, copy of Order of Dismissal, dismissing with prejudice). Petitioner appealed unsuccessfully. (DE# 1-2 at 105, 4/08/2015 Order of Supreme Court of South Carolina, denying petition for a writ of certiorari; DE# 1-3 at 12, same). Remittitur was issued on April 24, 2015. DE# 1-3 at 13).

         Meanwhile, on or about April 28, 2014, Petitioner filed a federal habeas petition pursuant to 28 U.S.C. § 2254. He argued that his guilty plea was not an “informed and intelligent decision” and that his counsel had been constitutionally ineffective on several grounds. The District Court considered and dismissed the § 2254 petition on the merits. See Pierce v. Reynolds, Case No. 2:15-cv-1803-SB-MGB, 2016 WL 1271001 (D.S.C. March 29, 2016). Petitioner did not appeal.

         Petitioner then filed a federal habeas petition pursuant to 28 U.S.C. § 2241 in federal court. Petitioner indicates he signed his petition on September 22, 2016. The Petition was received and filed in the federal docket on September 26, 2016. In the petition, Petitioner indicates he wishes to challenge the result of his state collateral proceedings. (DE# 1 at 7, ¶ 15). However, in his supporting memorandum, Petitioner challenges his conviction and repeats the same arguments from his prior petition pursuant to 28 U.S.C. § 2254. Specifically, Petitioner argues that his counselled guilty plea was not “an informed and intelligent decision” and that his trial counsel was constitutionally ineffective on three grounds. (DE# 1-1 at 8, 14, 23, and 34). For relief, the Petitioner seeks to vacate his “conviction and sentence” and asks the Court to “remand for new trial.” (DE# 1 at 10, ¶ 16).

         II. Standard of Review

         Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case pursuant to the Rules Governing § 2254 Cases, 28 U.S.C. § 2254; the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 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); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995) (en banc); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).

         Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). 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 prisoner'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).

         III. Initial Screening of a Successive Petition

         This Court must screen this habeas 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 petition regarding the same issues and the same conviction. The AEDPA provides that “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). This Court may properly take judicial notice of public records. 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”).

         For a second petition to qualify as “successive, ” the dismissal of the first habeas petition must have been “on the merits.” 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); and see e.g., Harvey, 278 F.3d at 379-80 (differentiating dismissals “on the merits, ” including those for procedural default, from dismissals without prejudice based on “lack of exhaustion”). Petitioner's first § 2254 petition was dismissed with prejudice on the merits. See Case No. 2:15-cv-1803-SB-MGB.[1]

         Although Petitioner has labeled this second petition as one brought pursuant to 28 U.S.C. § 2241, the Fourth ...


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