United States District Court, D. South Carolina, Greenville Division
Anthony R. Taylor a.k.a. Anthony Robert Taylor, PLAINTIFF,
Warden Dunlap, DEFENDANT.
L. Wooten Chief United States District Judge.
Anthony R. Taylor, proceeding pro se and in
forma pauperis, filed this petition seeking habeas
corpus relief pursuant to 28 U.S.C. § 2254. ECF No. 1.
The matter now comes before the Court for review of the
Report and Recommendation (R&R) filed on November 3,
2015, by United States Magistrate Judge Kevin F. McDonald, to
whom this case was assigned pursuant to the provisions of 28
U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2),
DSC. ECF No. 10. In the R&R, the magistrate judge
recommended summarily dismissing the petition. Id.
Petitioner filed objections to the R&R on November 20,
2015. ECF No. 13. This matter is now ripe for decision.
reviewing the R&R, the Court applies the following
The magistrate judge makes only a recommendation to the
Court, to which any party may file written objections . . . .
The Court is not bound by the recommendation of the
magistrate judge but, instead, retains responsibility for the
final determination. The Court is required to make a de novo
determination of those portions of the report or specified
findings or recommendation as to which an objection is made.
However, the Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of
the magistrate judge as to those portions of the report and
recommendation to which no objections are addressed. While
the level of scrutiny entailed by the Court's review of
the Report thus depends on whether or not objections have
been filed, in either case the Court is free, after review,
to accept, reject, or modify any of the magistrate
judge's findings or recommendations.
Wallace v. Hous. Auth. of City of Columbia, 791
F.Supp. 137, 138 (D.S.C. 1992) (citations omitted). In light
of the standard set forth in Wallace, the Court has
reviewed, de novo, the R&R and the objections.
objects to the R&R and asserts that his current §
2254 petition is not governed by 28 U.S.C. § 2244
because it raises a new claim that could not have been raised
in his first § 2254 petition, does not challenge the
validity of his conviction or sentence, and challenges a new
judgment from the South Carolina Supreme Court. ECF No. 13 at
2. He asserts that the South Carolina Supreme Court's
denial of his motion for an out-of-time appeal or
authorization to file a successive post-conviction relief
(“PCR”) application pursuant to Austin v.
State, 409 S.E.2d 395 (S.C. 1991), is a new judgment.
Id.; ECF No. 1 at 5. Petitioner asserts that the
South Carolina Supreme Court denied his rights to due process
and equal protection under the Fourteenth Amendment when it
denied his motion. ECF No. 13 at 2.
§ 2254 petition “seeks invalidation . . . of the
[state] judgment authorizing the prisoner's
confinement.” Magwood v. Patterson, 561 U.S.
320, 332 (2010). In analyzing a second-in-time habeas
application, “a court must first determine whether a
petition is second or successive, and only if it is should
the court review the petition's individual claims to see
if they meet § 2244(b)'s requirements.” In
re Gray, 850 F.3d 139, 141 (4th Cir. 2017). “[T]he
phrase ‘second or successive' must be interpreted
with respect to the judgment challenged.”
Magwood, 561 U.S. at 333. “[W]here . . . there
is a ‘new judgment intervening between the two habeas
petitions, ' . . . an application challenging the
resulting new judgment is not ‘second or
successive' at all.” Magwood, 561 U.S. at
341-42 (quoting Burton v. Stewart, 549 U.S. 147, 156
(2007)). “[A] final judgment of conviction includes
both the adjudication of guilt (or ‘conviction')
and the sentence.” Gray, 850 F.3d at
South Carolina Supreme Court's denial of Petitioner's
motion for an out-of-time appeal or successive PCR is not a
new judgment and thus his petition is second or successive
under § 2244. A “judgment” is the conviction
and sentence under which the prisoner is confined; however,
Petitioner is not in custody pursuant to the South Carolina
Supreme Court's order denying his motion. The only
judgment Petitioner could challenge in this § 2254
habeas petition is the judgment confining him, which is the
same judgment that Petitioner challenged in his § 2254
petition from 2003. See ECF No. 10 at 3. As
explained in Magwood and Burton, where
there is no intervening judgment between habeas petitions,
the second-in-time petition challenges the same judgment and
is “second or successive” under § 2244(b).
See Magwood, 561 U.S. at 333 (petition was not
successive where there was an intervening judgment);
Burton, 549 U.S. at 156 (petition was successive
where there was not an intervening judgment). Therefore, the
petition here is second or successive under § 2244.
attempts to support his position that his petition is not
successive with a case from the Western District of
Louisiana. See Gaston v. Goodwin, No. CIV.A.
13-2952, 2014 WL 508515, at *2 (W.D. La. Feb. 6, 2014).
Noting that the Gaston petitioner ultimately did not
obtain relief, the Court is not persuaded in light of binding
Supreme Court and Fourth Circuit precedent. Magwood,
Burton, and Gray establish a judgment-based
approach to whether a habeas petition is second or
successive. Accordingly, the Court OVERRULES Petitioner's
Court notes that even if the petition were not successive,
summary dismissal would be appropriate because the petition
challenges a collateral decision rather than the judgment
authorizing Petitioner's confinement and therefore is not
cognizable under § 2254. See 28 U.S.C. §
2243 (court shall issue writ unless it appears from the
application that petitioner is not entitled to relief);
see also Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts.
noted above, a § 2254 petition challenges the state
judgment confining the petitioner. See Magwood, 561
U.S. at 332. Accordingly, “claims of error occurring in
a state post-conviction proceeding cannot serve as a basis
for federal habeas corpus relief.” Bryant
v. State of Md., 848 F.2d 492, 493 (4th Cir. 1988). This
is so “because the assignment of error relating to
those post-conviction proceedings represents an attack on a
proceeding collateral to detention and not to the detention
itself.” Lawrence v. Branker, 517 F.3d 700,
717 (4th Cir. 2008). Where a prisoner is not detained based
on a decision in a state habeas action, challenging the state
habeas decision does not establish the basis for federal
habeas relief. Wright v. Angelone, 151 F.3d 151, 159
(4th Cir. 1998).
challenges a collateral decision regarding state court
post-conviction relief proceedings rather than the judgment
authorizing his confinement. Because Petitioner does not
challenge the judgment authorizing his confinement, habeas
relief under § 2254 is not available. See
Bryant, 848 F.2d at 493; Lawrence, 517 F.3d at
717; Wright, 151 F.3d at 159.
careful review of the R&R and the objections, for the
reasons stated by the magistrate judge and the reasons set
forth in this opinion, the R&R is ACCEPTED. The petition
is hereby DISMISSED.
Court has reviewed this petition in accordance with Rule 11
of the Rules Governing Section 2254 Proceedings. The Court
concludes that it is not appropriate to issue a certificate
of appealability as to the issues raised herein. Petitioner
is advised that he may seek a certificate from the Fourth