United States District Court, D. South Carolina, Rock Hill Division
Bryan Harwell United States District Judge.
Randy Tucker Hall, a state prisoner proceeding pro se,
initiated this action by filing a petition for a writ of
habeas corpus pursuant to 28 U.S.C. §
2254. See ECF No. 1. The matter is now
before the Court for consideration of Petitioner's
objections to the Report and Recommendation (R & R) of
United States Magistrate Judge Paige J.
Gossett. See R & R [ECF No. 9];
Pet.'s Objs. [ECF No. 11]. The Magistrate Judge
recommends summarily dismissing Petitioner's § 2254
petition without prejudice and without requiring Respondent
to file a return. R & R at 1, 3.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it 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. §
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
previously filed a § 2254 petition, which this Court
considered on the merits and dismissed with
prejudice. See Hall v. Ozmint, No.
0:09-cv-00330-RBH, 2010 WL 1068979 (D.S.C. Mar. 18, 2010)
(“Hall I”). Petitioner has now filed a
second § 2254 petition challenging the same convictions
that were the subject of his first § 2254 petition.
Compare ECF No. 1, with Hall I at ECF No.
1. The Magistrate Judge recommends dismissing the instant
petition as successive, noting there is no indication that
Petitioner obtained pre-filing authorization from the United
States Court of Appeals for the Fourth Circuit before filing
it. R & R at 2, 4-5.
Petitioner filed objections, he does not dispute the
Magistrate Judge's findings that his petition is
successive and that he has not obtained pre-filing
authorization. Rather, Petitioner simply asserts the
Magistrate Judge “misconstrues” the fact that he
has new claims he wants the Court consider. See
of whether Petitioner has new claims not raised in his prior
§ 2254 petition, the Court agrees with the Magistrate
Judge that his instant § 2254 petition is successive and
must be dismissed. This Court decided Petitioner's first
§ 2254 petition on the merits. See Hall I, 2010
WL 1068979 (granting the respondent's motion for summary
judgment and dismissing the petition with prejudice).
Consequently, the petition currently before the Court is
successive. See Slack v. McDaniel, 529 U.S. 473,
485-89 (2000) (defining a successive petition as one filed
after an initial petition was decided on its merits).
Moreover, there is no evidence showing Petitioner obtained
pre-filing authorization from the Fourth Circuit to file a
successive petition. See 28 U.S.C. §
2244(b)(3)(A) (“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.”); Easter v.
Johnson, 107 F.App'x 348, 349 (4th Cir. 2004)
(“In the absence of pre-filing authorization, the
district court is without jurisdiction to entertain the
successive petition.”). Consequently, the Court lacks
jurisdiction over Petitioner's current § 2254
petition and must dismiss it.
certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When the district
court denies relief on the merits, a prisoner satisfies this
standard by demonstrating reasonable jurists would find the
court's assessment of the constitutional claims is
debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003). When the district court denies relief on
procedural grounds, the prisoner must demonstrate both that
the dispositive procedural ruling is debatable and that the
petition states a debatable claim of the denial of a
constitutional right. Slack, 529 U.S. at 484-85. In
this case, the Court concludes Petitioner has not made the
requisite showing of “the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2).
upon the foregoing, the Court overrules Petitioner's
objections and adopts and incorporates by reference the
Magistrate Judge's R & R [ECF No. 9]. Accordingly,
the Court DISMISSES Petitioner's §
2254 petition without prejudice and without
requiring Respondent to file an answer or return. The Court
DENIES a certificate of appealability
because Petitioner has not made ...