United States District Court, D. South Carolina, Beaufort Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
SUMMARILY DISMISSING THE PETITION WITHOUT PREJUDICE AND
WITHOUT REQUIRING RESPONDENT TO FILE A RETURN
GEIGER LEWIS UNITED STATES DISTRICT JUDGE
case was filed as a 28 U.S.C. § 2241 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
summarily dismissed without prejudice and without requiring
Respondent to file a 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 recommendations of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. §
Magistrate Judge filed the Report on June 24, 2014. ECF No.
9. Here is a summary of Petitioner's submissions to the
Court after the Report was filed:
July 7, 2014
The Clerk of Court filed Petitioner's first
set of objections to the Report. ECF No. 11.
July 9, 2014
The Clerk of Court filed Petitioner's second
set of objections to the Report. ECF No. 13.
July 10, 2014
The Clerk of Court field Petitioner's third
set of objections to the Report. ECF No. 14.
July 14, 2014
The Clerk of Court filed Petitioner's final
set of objections to the Report. ECF. No. 15.
October 20, 2014
The Clerk of Court for the Fourth Circuit entered
Petitioner's 28 U.S.C. § 2244 for an
order authorizing this Court to consider a
successive motion for relief under 28 U.S.C.
§ 2254. The Fourth Circuit denied the
November 12, 2014
The Clerk of Court filed Petitioner's
declaration reminding the Court of its
responsibility to address miscarriages of justice
under 28 U.S.C. § 2243. ECF No. 17.
November 23, 2015
The Clerk of Court filed Petitioner's reply
to the Court's order to brief it on the
applicability of United States v.
Surratt, 797 F.3d 240 (4th Cir. 2015) to his
§ 2241 petition. ECF No. 33.
sent an additional fourteen letters to the Court requesting
docket sheets and status updates.
Court has carefully considered Petitioner's objections
and correspondence but holds them to be without merit.
Therefore, it will enter judgment accordingly.
document filed pro se is ‘to be liberally
construed.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). Courts are not, however, required to
“conjure up questions never squarely presented to
them” or seek out arguments for a party. Beaudett
v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Here, Petitioner presents nothing in his many submissions
that convince the Court the Magistrate Judge erred in
recommending the Petition be dismissed.
is unable to successfully contradict the Magistrate
Judge's core suggestion the Court lacks jurisdiction over
this case due to Petitioner's failure to adhere to the
procedural rules set forth for filing successive claims under
28 U.S.C. § 2254. Petitioner's claims, while filed
under § 2241, are more properly addressed under §
2254, as § 2254 specifically provides for prisoners
charged under state criminal codes to file a writ of habeas
corpus in a federal court. See 28 U.S.C. §
2254(a) (“The Supreme Court, a Justice thereof, a
circuit judge, or a district court shall entertain an
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the
Constitution or laws or treaties of the United
States.”). As the Magistrate Judge explains, Petitioner
cannot escape the procedural requirements of a § 2254
claim by praying for relief under § 2241. See
ECF No. 9 at 4 (“Petitioner cannot evade the procedural
requirements of 28 U.S.C. § 2254 by filing an action
purporting to be a § 2241 petition . . . If this were
not the case, then ‘a state prisoner could simply opt
out of its  operation by choosing a different label for
his petition.'”) (citation omitted).
who has previously filed two § 2254 claims in this
Court, is required to seek authorization for his claim from
the appropriate federal appellate court before he may file a
successive writ of habeas corpus in federal district court.
Barring such permission from the Fourth Circuit, this Court
lacks jurisdiction over the successive § 2254 claim.
See United States v. Winestock, 240 F.3d 200, 205
(4th Cir. 2003) (“In the absence of pre-filing
authorization [from the court of appeals], the district court
lacks jurisdiction to consider an application containing
abusive or repetitive claims.”). At the time of the
Report, Petitioner had sought no such authorization from the
Fourth Circuit Court of Appeals. As noted above, after the
Magistrate Judge filed the Report, Petitioner filed a motion
with the Fourth Circuit under 28 U.S.C. § 2244 for an
order authorizing this Court to consider a successive
application for relief under § 2254. That motion was
denied, which has the effect of denying this Court's
jurisdiction and curbing any chance Petitioner might have to
seek relief under § 2254.
a § 2241 claim had been appropriate, however,
Petitioner's action would be barred because he failed to
satisfy the exhaustion requirements before filling his §
2241 petition. See Braden v. 30th Judicial Circuit
Court, 410 U.S. 484, 490-491 (1993) (explaining
exhaustion of state remedies is required before filing a
§ 2241 petition).
time of the Report, Petitioner had a pending state court
application for post-conviction relief (PCR). See
ECF No. 9 at 6 (“Petitioner acknowledges that he has a
pending state court application for post-conviction
relief”). The state court dismissed the action on
February 16, 2017. See
1187789989085 (last visited on June 29, 2017).
the state court dismissed Petitioner's state petition
after Petitioner filed this action, his failure to adhere to
the exhaustion requirements before he filed his § 2441
petition would keep this Court from entertaining his claim if
it were properly before it.
abundance of caution, the Court has made a de novo review of
the entire record. After having done so, the Court remains
convinced dismissing the petition without prejudice and
without requiring Respondent to file a return is ...