United States District Court, D. South Carolina, Florence Division
Oliver M. Boling, Petitioner,
Warden (F.C.I). Estill, Respondent.
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge.
matter is before the court on Petitioner's pro
se application for writ of habeas corpus filed in this
court pursuant to 28 U.S.C. § 2241.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(c), DSC, this matter was referred to United
States Magistrate Judge Thomas E. Rogers, III, for pre-trial
proceedings and a Report and Recommendation
(“Report”). On November 15, 2016, the Magistrate
Judge issued a Report recommending that the petition for
habeas corpus be dismissed with prejudice as successive,
without requiring Respondent to file a return. ECF No. 12.
The Magistrate Judge advised Petitioner of the procedures and
requirements for filing objections to the Report and the
serious consequences if he failed to do so. The Report was
sent to Petitioner on November 15, 2016. ECF No. 13. On
November 29, 2016, the clerk was notified that Petitioner had
not received the Report, and mailed another copy. ECF No. 14.
Petitioner notified the clerk that he received the Report on
December 5, 2016, and so was allowed until December 22, 2016
to file any objections. ECF No. 15. On December 19, 2016,
Petitioner's objections were filed. ECF No. 17.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. See Mathews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo
determination of any portion of the Report of the Magistrate
Judge to which a specific objection is made. The court may
accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the
matter to the Magistrate Judge with instructions.
See 28 U.S.C. § 636(b). The court reviews the
Report only for clear error in the absence of an objection.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that
“in 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
recommendation.”) (citation omitted).
reviewing the record of this matter, the applicable law, the
Report and Recommendation of the Magistrate Judge, and
Petitioner's objections de novo, the court
agrees with the conclusions of the Magistrate Judge.
Accordingly, the court adopts and incorporates the Report and
Recommendation by reference in this Order.
objections are without merit. First, he objects to the
categorization of his Petition as one under § 2254
instead of § 2241 of Title 28. However, as correctly
analyzed by the Magistrate Judge, Fourth Circuit precedent
clearly precludes this argument. See In re: Wright,
826 F.3d 774 (4th Cir. 2016). Under Wright, the
instant petition must be one pursuant to § 2254 and the
attendant requirements of § 2244.
he objects to the conclusion that the instant petition is
second or successive because “it raises claims that
could have been raised in prior petitions.” ECF No. 12
(citing Wright, 826 F.3d at 783-74). As recognized
by the Magistrate Judge, § 2244 does not provide a
chance to bring any claim at any time. “Before a second
or successive application permitted by this section is filed
in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.” §
2244(b)(3)(A). Petitioner failed to obtain authorization
before filing the instant petition.
argues his claim is not successive because he did not know of
this potential claim at the time he filed previous petitions
under § 2241 and § 2254, and he could not file this
petition until he exhausted his administrative options.
However, these arguments miss the mark of what is required in
order to bring a challenge under § 2254. While it may be
true that Petitioner first had to exhaust his administrative
options, Petitioner has provided no information as to why he
did not administratively challenge the computation of his
sentence earlier. Petitioner could have requested a sentence
computation, as he did recently, earlier in his sentence and
thus would have discovered the facts that led to his current
argument, which then could have been included in his previous
petitions. See Wright, 826 F.3d at 784 (“[N]ew
claims raised in subsequent habeas petitions” are
barred if “those claims were available to petitioner at
the time of a prior petition's filing.”).
also argues that his petition is not successive because he
has not filed a petition regarding his good time credit
previously, citing a case in which a petitioner raised the
same legal issue as in a prior petition. See Cook v.
Pearce, No. A-14-CV-913 LY, 2015 U.S. Dist. LEXIS 31822
(W.D. Tx. Mar. 13, 2015) (recommending dismissal based on
abuse of the writ for reasserting same arguments as a
previous unsuccessful filing), aff'd 639 F.
App'x 283 (5th Cir. 2016). Petitioner seeks to
distinguish his case from the cited authority. However, this
authority is not on point. It is not only claims previously
brought that are barred from a subsequent petition, but also
those that could have been brought but were not. See
Wright, 826 F.3d at 784 (failing to raise a claim in a
subsequent petition that could have been raised in the first
leads to dismissal even in “instances where litigants,
through inexcusable neglect, fail to raise available
reasons stated in the Report and those above, this petition
is dismissed without prejudice.
IS SO ORDERED.
 This Order adopts the conclusion of
the Report that Petitioner's claim should be dismissed,
but dismisses the Petition without prejudice to
Petitioner's right to petition the Fourth Circuit for