United States District Court, D. South Carolina
RUFUS J. ANDERSON, Petitioner,
SOUTH CAROLINA PROBATION & PAROLE, Respondent.
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
DISMISSING THE PETITION WITHOUT PREJUDICE AND WITHOUT
REQUIRING RESPONDENT TO FILE AN ANSWER OR RETURN
GEIGER LEWIS UNITED STATES DISTRICT JUDGE
case was filed as a 28 U.S.C. § 2254 action. Petitioner
is proceeding pro se. The matter is before the Court for
review of the Report and Recommendation (Report) of the
United States Magistrate Judge suggesting the Petition be
dismissed without prejudice and without requiring Respondent
to file an answer or return. The Report was made in
accordance with 28 U.S.C. § 636 and Local Civil Rule
73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of
those portions of the Report to which specific objection is
made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. §
Magistrate Judge filed the Report on February 27, 2017, and
the Clerk of Court entered Petitioner's objections to the
Report on March 14, 2017. The Court has reviewed the
objections, but holds them to be without merit. Therefore, it
will enter judgment accordingly.
Petitioner's objections, he argues his Petition should
not be considered second or successive to his prior §
2254 action, Anderson v. Director of Greenville County
Detention Center, C/A No. 8:15-4916-MGL, 2016 WL 6997345
(D.S.C. Nov. 30, 2016). Petitioner acknowledges the
requirement under 28 U.S.C. § 2244(b)(3)(A) that a
petitioner seeking to bring a second or successive
application under § 2254 must file in the appropriate
court of appeals for an order authorizing the district court
to consider the application. However, he avers his case falls
under the exceptions contained at § 2244(b)(2) and that
his case should not be subject to summary dismissal.
Petitioner's objections are without merit.
Petitioner's prior § 2254 action, the Court granted
the respondent's motion for summary judgment because the
§ 2254 petition was time barred and Petitioner had
failed to convince the Court he was entitled to equitable
tolling. Anderson, 2016 WL 6997345 at *1. This
decision adjudicated Petitioner's claims on the merits.
See Henderson v. Bazzle, C/A No. 9:08-978-MBS-GCK,
2008 WL 1908535, at *3 (D.S.C. April 29, 2008) (noting for a
petition to qualify as “successive, ” the prior
petition must have been adjudicated on the merits, which
includes a prior dismissal of a petition as untimely);
Griffin v. Padula, 518 F.Supp.2d 680, 687 (D.S.C.
2007) (holding a petition's dismissal based upon the
one-year AEDPA statute of limitations is an adjudication on
the merits that results in subsequent § 2254 petitions
being designated as successive).
the Anti-Terrorism and Effective Death Penalty Act of 1996,
“an individual may not file a second or successive
§ 2254 petition for a writ of habeas corpus or §
2255 motion to vacate sentence 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). “The prospective applicant must file in the
court of appeals a motion for leave to file a second or
successive habeas application in the district court.”
Felker v. Turpin, 518 U.S. 651, 657 (1996) (citing
§ 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' § 2244(b).” Id. (quoting §
instant Petition is uncontrovertedly second or successive
under § 2244(b), given the fact it was filed after the
Court ruled on his first § 2254 action. Therefore,
Petitioner was required to obtain leave from the United
States Court of Appeals for the Fourth Circuit prior to
filing this action. § 2244(b)(3)(A). Inasmuch as
Petitioner failed to obtain authorization from the Fourth
Circuit before filing this action, this Court lacks
jurisdiction to consider his Petition. See United States
v. Winestock, 340 F.3d 200, 205-06 (4th Cir. 2003).
Consequently, the Court will overrule Petitioner's
thorough review of the Report and the record in this case
pursuant to the standard set forth above, the Court overrules
Petitioner's objections, adopts the Report, and
incorporates it herein. Therefore, it is the judgment of this
Court the Petition is DISMISSED WITHOUT PREJUDICE and without
requiring Respondent to file an answer or return.
extent Petitioner requests a certificate of appealability
from this ...