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Smalls v. Sterling

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

December 15, 2016

Demetrius Smalls, # 286806, Petitioner,
v.
Bryan Sterling, Warden, Respondent.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

         Demetrius 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:

         I. Background

         In 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 appeal.[1]

         He filed several applications for post-conviction relief (“PCR”), which were denied. (DE# 1, ¶¶ 9, 11).[2] 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.[3]

         On 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 preliminary hearing.
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).

         Petitioner 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, 18-19).

         In 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 ...


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