United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Margaret B. Seymour Senior United States District Judge.
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.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
Liberal Construction of Pro Se Claims
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).
Magistrate Judge Review
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).
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.
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 ...