United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
Gordan Baker, Judge
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:
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.
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).
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.
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, ¶
Standard of Review
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).
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).
Initial Screening of a Successive Petition
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”).
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.
Petitioner has labeled this second petition as one brought
pursuant to 28 U.S.C. § 2241, the Fourth ...