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Kinloch v. Reynolds

United States District Court, D. South Carolina, Charleston Division

August 22, 2017

Antonio Kinloch, Petitioner,
v.
Cecelia Reynolds, Warden, Respondent.

          ORDER AND OPINION

          Margaret B. Seymour Senior United States District Judge.

         On November 30, 2016, Petitioner Antonio Kinloch (“Petitioner”), proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner is currently a state prisoner incarcerated at Lee Correctional Institution in Bishopville, South Carolina. ECF No. 1. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Mary Gordon Baker for pretrial handling. This matter is before the court on the Magistrate Judge's Report and Recommendation (“Report”) filed January 17, 2017. ECF No. 13.

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         On June 14, 1995, Petitioner was sentenced to life imprisonment upon conviction of murder in the Court of General Sessions for Charleston County, South Carolina. ECF No. 1 at 1. Petitioner timely filed a direct appeal. On April 22, 1997, the South Carolina Supreme Court dismissed Petitioner's appeal. See Kinloch v. Maynard, No. 8:02-cv-3414-MBS-BHH (ECF No. 26, Order detailing procedural history). On August 19, 1997, Petitioner filed for state post-conviction relief, claiming ineffective assistance of counsel. See Kinloch v. State, Charleston County, No. 97-CP-10-3996. Petitioner's request for relief was denied. Petitioner then appealed. On August 8, 2001, the South Carolina Supreme Court denied Petitioner's writ of certiorari. ECF No. 13 at 3. Remittitur was sent to the Court of Common Pleas on August 28, 2001. Id.

         On October 11, 2002, Petitioner filed an untimely federal petition for habeas corpus. See No. 8:02-cv-3414-MBS-BHH, ECF No. 1. The one year period of limitations under 28 U.S.C. § 2244(d) had already expired, but Petitioner argued that the limitations period should be equitably tolled because of his placement in administrative segregation during 2001-2002. Id. On February 19, 2004, this court rejected Petitioner's argument, and dismissed his petition with prejudice. See No. 8:02-cv-3414-MBS-BHH, ECF No. 27.

         On November 30, 2016, Petitioner filed the underlying petition for writ of habeas corpus, claiming that equitable tolling should again apply. ECF No. 1. Petitioner acknowledges that his petition is time-barred; however, he requests “leniency and mercy” citing various illnesses, medical procedures, and a general fear of violence as reasons for his untimely filing. ECF No. 1 at 13-15.

         II. LEGAL STANDARDS

         A. Liberal Construction of Pro Se Claims

         The court is required to construe pro se pleadings liberally. See, e.g., Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

         B. Magistrate Judge Review

         The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with this court. Mathews v. Weber, 423 U.S. 261, 270 (1976). This court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

         III. ANALYSIS

         In the Report, the Magistrate Judge recommends that Petitioner's § 2254 petition be summarily dismissed without prejudice as it is an unauthorized successive petition. ECF No. 13 at 1. Specifically, the Magistrate Judge finds, “Petitioner does not indicate, and the record does not reflect, that he has sought authorization from the Fourth Circuit Court of Appeals to file this successive petition.” Id. at 4. As a result, the Magistrate Judge concludes that the court has no jurisdiction over Petitioner's § 2254 petition.

         In his objections to the Report, Petitioner requests that his case be heard despite his untimely filing because he “went through a mental health breakdown and was lost for a while . . . [and ...


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