United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Smalls (“Petitioner”) is a state prisoner at
Lieber Correctional Institution in South Carolina. He
proceeding pro se and in forma pauperis. He
has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. (DE# 1, Petition, 160 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 is an unauthorized successive petition,
and therefore, 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:
February of 2006, the Charleston County Grand Jury indicted
Petitioner on two counts of armed robbery, assault and
battery with intent to kill, and kidnapping. See Charleston
County General Sessions Court Case Nos. 2006-GS-10-01253,
2006-GS-10 01254, 2006-GS-10 01255. (DE# 1-4 at 9). Plaintiff
pleaded guilty on June 26, 2007. He was convicted and
sentenced to concurrent sentences, for a total of twenty-five
(25) years imprisonment. Plaintiff did not
filed several applications for post-conviction relief
(“PCR”), which were denied. (DE# 1, ¶¶
9, 11). Plaintiff has also filed numerous related
civil cases in this federal judicial district. See,
e.g., D.S.C. Case Nos. 2:15-2782, 2:15-2510, 2:14-3215,
2:14-958, 2:13-3374, and 2:13-2651.
September 23, 2013, Plaintiff filed a first habeas petition
pursuant to 28 U.S.C. § 2254. The grounds for relief in
the first habeas petition pertained to: 1) Petitioner's
2007 convictions for armed robbery, assault and battery with
intent to kill, and kidnapping; 2) his 2005 arrest; and 3)
his 2005 traffic violations. Specifically, Petitioner raised
the following issues (verbatim):
Ground One: Extrinsic fraud.
Supporting Facts: I was kidnapped from society on inactive
arrest warrants and the solicitor, attorney general,
magistrate, municipal and circuit courts are all well aware
of this, and initiated cases 2004-010174, 2005-000-275 and
2005-000-979; also, knowingly and deliberately submitted
false information on state documents to conceal their
intentional scheme to defraud the court, as well as
manipulating the transfer court system to prosecute me in
general sessions court.
Ground Two: Perjury/illegal arrest.
Supporting Facts: The case agent in case(s)
2006-GS-10-1253-56 lied knowingly and intentionally about
placing me under arrest and serving me arrest warrants; and
attempted to cut the arresting agency out of the picture to
make it seem as if I was not arrested by another agency.
Ground Three: Prosecutorial misconduct/Brady
violation. Supporting Facts: The Solicitor Scarlett Wilson
withheld information regarding an “alleged confidential
informant, that was paid $100.00 to give information that led
to my arrest. However, this was never brought up at my
Ground Four: Ineffective assistance of trial
counsel. Supporting Facts: I was arrested illegally, admitted
excessive bail, committed to detention, tried and prosecuted
on inactive arrest warrants. I was also never indicted
lawfully, but given twenty-five years when I never waived
presentment or pled to a lesser-included offense.
See Case No. 2:13-cv-2651-RMG-BHH (DE#1, First Petition).
Petitioner also filed a 76-page supplemental brief.
(Id., DE# 26).
indicated that he was seeking to vacate his 2007 convictions
in the “Ninth Circuit Court of General Sessions . . .
on the basis [that] indictment No(s) 2006-GS-10-1253-56 were
(sic) illegally bounded to the commitment of the Petitioner .
. .” (Id., DE# 26 at 38). Petitioner alleged
that his 2007 convictions were invalid because he was
arrested on inactive arrest warrants in case no. 2004-010174
and removed from Dorchester County, without Summerville
Police or the Mount Pleasant Police enforcing and executing
an order of the court in Dorchester County. (Id.,
DE# 26 at 9). Petitioner contended he was arrested in
violation of state law and complained that he was arrested in
Summerville and transported to Mount Pleasant. He complained
he did not get a preliminary hearing for 2004-010174 and that
he was tried in absentia [for traffic violations] without
being informed of the consequences of failing to attend.
(Id., DE# 26 at 5). He contends that he was never
indicted on 2004-010174, and that the trial court lacked
subject matter jurisdiction. (Id., DE# 26 at 14-16,
reviewing Petitioner's first habeas petition, the
Magistrate Judge aptly pointed out that although Petitioner
had expressly stated in his petition that he was challenging
his 2007 convictions for armed robbery, kidnapping, and
assault and battery with intent to kill, it was
“unclear how information related to arrest warrants
H865617 and H865618-which, according to Petitioner, are for
driving without a license and interference with or hindering
officers-entitles him to relief on his convictions for armed
robbery, kidnapping, and assault and battery with intent to
kill.” See Case No. 2:13-cv-2651-RMG-BHH, DE# 41 at 7,
fn.2, Report ...