United States District Court, D. South Carolina, Charleston Division
Richard Mark Gergel United States District Court Judge.
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending summary dismissal of
this unauthorized successive petition for habeas relief. The
Court adopts the Report and Recommendation in part and
summarily dismisses the petition.
26, 2007, Petitioner pleaded guilty to two counts of armed
robbery, assault and battery with intent to kill, and
kidnapping. He did not appeal, but he filed several
applications for post-conviction relief, which were denied.
He has also filed numerous related civil cases in this
District. See, e.g., Case Nos. 2:15-2782, 2:15-2510,
2:14-3215, 2:14-958, 2:13-3374, 2:13-2651. On September 23,
2013, Petitioner filed his first habeas petition pursuant to
28 U.S.C. § 2254. The Court denied relief because the
petition was untimely, several asserted grounds for relief
were procedurally barred, and Petitioner's substantive
claims lacked merit. Smalls v. McFadden, Case No.
2:13-cv-2651-RMG-WWD, 2014 WL 3571415 (D.S.C.), appeal
dismissed, 597 F.App'x 186 (4th Cir. March 17,
2015). On July 15, 2015, Plaintiff his second habeas petition
challenging the same 2007 convictions. See Smalls v.
Warden, Case No. 2:15-cv-02782-RMG-MGB. The Court
dismissed the petition because "the petition is
successive, and Petitioner has not been granted permission by
the Fourth Circuit to file a second or successive petition
for a writ of habeas corpus." Order, id., Dkt.
No. 7 at 3. On September 26, 2016, Petitioner moved the
Fourth Circuit to authorize a successive habeas petition,
which was denied on October 25, 2016. In re Demetrius
Smalls, No. 16-3079 (4th Cir.). On December 12, 2016,
Petitioner filed his third habeas petition challenging the
same 2007 convictions, which is now before the Court. On
December 29, 2016, Petitioner again sought habeas relief in
the form of a "motion for a default judgment" in
closed case number 2:13-cv-2651 -RMG-WWD, which was struck
from the docket pursuant to the Court's order of August
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. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination
of those portions of the Report and Recommendation to which
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
habeas petition is successive if a prior petition was
dismissed on the merits. Slack v. McDaniel, 529 U.S.
473, 485-89 (2000). Petitioner's first § 2254
petition was dismissed with prejudice on the merits. See
Smalls, 2014 WL 3571415. "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." 28 U.S.C.
§ 2244 (b)(3)(A). Petitioner must first obtain
authorization from the United States Court of Appeals for the
Fourth Circuit before filing this successive petition. The
Court adopts the Report and Recommendation of the Magistrate
Judge, identifying this as a successive petition and
recommending dismissal, except that the Court declines to
adopt the first sentence of the second paragraph of the
eighth page of the Report and Recommendation, which states
"Petitioner does not indicate, and the record does not
reflect, that he has sought permission from the Fourth
Circuit Court of Appeals to file a successive § 2254
petition." As noted above, Petitioner did seek
permission from the Fourth Circuit to file a successive
petition, which was denied on October 25, 2016. He
nonetheless filed this unauthorized successive petition on
December 12, 2016. The Court lacks jurisdiction to consider
an unauthorized successive petition. 28 U.S.C. § 2244
foregoing reasons, the Court ADOPTS IN PART AND DECLINES TO
ADOPT IN PART the Report and Recommendation of the Magistrate
Judge (Dkt. No. 6) as the Order of the Court and DISMISSES
WITHOUT PREJUDICE the petition (Dkt. No. 1).
governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if
the applicant has made a substantial showing of the denial of
a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate
which specific issue or issues satisfy the showing ...