United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. Hodges United States Magistrate Judge
Lovett Burkes (“Petitioner”), proceeding pro se,
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C.
§ 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c)
(D.S.C.), the undersigned is authorized to review such
petitions and submit findings and recommendations to the
district judge. For the reasons that follow, the undersigned
recommends that the district judge dismiss the petition in
this case without requiring the respondent to file an answer.
I. Factual and Procedural Background The instant petition is
the second habeas action filed by Petitioner in this court
challenging the same convictions. See Burkes v.
McFadden, C/A No. 1:15-1332-BHH
(“Burkes I”). A review
of Petitioner's prior case reveals that he was indicted
in Spartanburg County, South Carolina, in July 2005 for
trafficking in crack cocaine. See Burkes I,
ECF No. 37. Plaintiff had a jury trial on November 2-3, 2005.
He was found guilty and sentenced to 25 years and a $50, 000
fine. Id. Petitioner filed a timely direct appeal,
and the South Carolina Court of Appeals affirmed his
conviction. Id. The remittitur was issued on January
2, 2008. Id.
filed an application for post-conviction relief
(“PCR”) on April 17, 2008. Burkes I, ECF
No. 42 at 3, n.2. The PCR court filed an order on July 7,
2009, denying Petitioner PCR relief. Burkes I, ECF
No. 37. Petitioner timely filed a notice of appeal by way of
a petition for writ of certiorari. Id. By order
issued March 2, 2011, the Supreme Court of South Carolina
granted the petition for writ of certiorari and ordered
briefing. Id. The court heard argument, and on
January 30, 2013, filed an opinion dismissing certiorari as
improvidently granted. Id. The remittitur was issued
on February 15, 2013. Id. Petitioner filed a second
PCR application on August 25, 2014, which the circuit court
dismissed with prejudice on September 10, 2015. Id.
filed Burkes I in this court on March 18, 2015. This
court considered the petition on the merits and granted
respondent's motion for summary judgment. Burkes
I, ECF No. 42. The instant petition seeks a writ of
habeas corpus on the same conviction.
Standard of Review
established local procedure in this judicial district, a
careful review has been made of this petition pursuant to the
Rules Governing Section 2254 Proceedings for the United
States District Court, the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214, and other habeas corpus statutes.
Pro se complaints are held to a less stringent standard than
those drafted by attorneys. Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged
with liberally construing a complaint filed by a pro se
litigant to allow the development of a potentially
meritorious case. Erickson v. Pardus, 551 U.S. 89,
94 (2007). In evaluating a pro se complaint, the
plaintiff's allegations are assumed to be true. Fine
v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The
mandated liberal construction afforded to pro se pleadings
means that if the court can reasonably read the pleadings to
state a valid claim on which the plaintiff could prevail, it
should do so. Nevertheless, the requirement of liberal
construction does not mean that the court can ignore a clear
failure in the pleading to allege facts that set forth a
claim currently cognizable in a federal district court.
Weller v. Dep't of Soc. Servs., 901 F.2d 387,
390-91 (4th Cir. 1990).
instant petition seeks a writ of habeas corpus on the same
conviction as in Burkes I. Under the AEDPA, an
individual may not file a second or successive petition for a
writ of habeas corpus under 28 U.S.C. § 2254, 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). Specifically, 28 U.S.C. §
2244(b)(3)(A) requires a prospective applicant to file with
the court of appeals a motion for leave to file a second or
successive habeas application in the district court. 28
U.S.C. § 2244(b)(3)(A). A three-judge panel has 30 days
to determine whether “the application makes a prima
facie showing that the application satisfies the requirements
of [28 U.S.C. § 2244(b)].” 28 U.S.C. §§
2244(b)(3)(B)-(D). For this court to consider a second or
successive § 2254 petition, Petitioner must obtain a
Pre-Filing Authorization from the Fourth Circuit under 28
U.S.C. § 2244(b)(3). See In re Williams, 330
F.3d 277 (4th Cir. 2003); In re Fowlkes, 326 F.3d
542 (4th Cir. 2003). Because there is no showing that
Petitioner obtained authorization from the Fourth Circuit to
file this successive habeas petition in the district court,
this court does not have jurisdiction to consider it.
Conclusion and Recommendation
the undersigned recommends that the petition in the
above-captioned case be dismissed.
parties are directed to note the important information in the
attached “Notice of Right to File Objections to Report
and Recommendation.” Notice of Right to File Objections
to Report and Recommendation
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections
are made and the basis for such objections. “[I]n the
absence of a timely filed objection, a district court need
not conduct a de novo review, but instead must ‘only
satisfy itself that there is no clear error on the face of
the record in order to accept the ...