United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 was submitted to the court by a state prison
inmate appearing pro se. Pursuant to 28 U.S.C. §
636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.),
this magistrate judge is authorized to review all pretrial
matters in such pro se cases and to submit findings and
recommendations to the district court. See 28 U.S.C.
§§ 1915(e), 1915A (as soon as possible after
docketing, district courts should review prisoner cases to
determine whether they are subject to summary dismissal).
Rivera (“Petitioner”) submitted the Petition
under review, seeking to challenge his 2015 Greenville County
murder conviction. Plaintiff was sentenced on October 13,
2005. Pet. 1, ECF No. 1. Petitioner asserts that both his
trial and appellate counsel were ineffective and that the
trial court erred in failing to charge the jury on
manslaughter. Id. at 5-7. Petitioner also asserts
prosecutorial and judicial misconduct. Id. at 8-9.
This is the second § 2254 Petition Petitioner has filed
in this court. In Rivera v. Lewis, No. 5:16-837-MGL,
this court considered his initial § 2254 petition on the
merits and granted summary judgment for the respondent. There
is no indication that Petitioner requested permission from
the Fourth Circuit Court of Appeals to file the second habeas
Petition currently under review.
Standard of Review
established local procedure in this judicial district, a
careful review was made of the pro se Petition filed in this
case. The review was conducted pursuant to the procedural
provisions of 28 U.S.C. §§ 1915, 1915A, and the
Anti-Terrorism and Effective Death Penalty Act of 1996, and
in light of the following precedents: Denton v.
Hernandez, 504 U.S. 25 (1992); Neitzke v.
Williams, 490 U.S. 319, 324-25 (1989); Haines v.
Kerner, 404 U.S. 519 (1972); Nasim v. Warden,
Md. House of Corr., 64 F.3d 951 (4th Cir. 1995);
Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983);
Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).
court is required to construe pro se petitions liberally.
Such pro se petitions are held to a less stringent standard
than those drafted by attorneys, Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district
court is charged with liberally construing a petition filed
by a pro se litigant to allow the development of a
potentially meritorious case. Erickson v. Pardus,
551 U.S. 89, 94 (2007). When a federal court is evaluating a
pro se petition the petitioner's allegations are assumed
to be true. De'Lonta v. Angelone, 330 F.3d 630,
630 n.1 (4th Cir. 2003). 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,
391 (4th Cir. 1990).
this court is charged with screening Petitioner's lawsuit
to determine if “it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court.” Rule 4 of Rules
Governing Section 2254 Cases in the United States District
Courts; see Rule 1(b) of Rules Governing Section
2254 Cases in the United States District Courts (a district
court may apply these rules to a habeas corpus petition not
filed pursuant to § 2254). Following the required
initial review, it is recommended that the Petition submitted
in this case should be summarily dismissed.
petition is frivolous or patently absurd on its face, entry
of dismissal may be made on the court's own motion
without the necessity of requiring a responsive pleading from
the government. See Raines v. United States, 423
F.2d 526, 529 (4th Cir. 1970). Chapter 153 of Title 28 of the
United States Code provides a statutory framework for federal
post-conviction relief from judgments of conviction entered
in federal and state courts. Under this framework,
individuals convicted of crimes in state courts seek federal
habeas corpus relief through 28 U.S.C. § 2254. See
In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997). Of
particular importance here are federal statutes codifying and
extending judicially constructed limits on the consideration
of second and successive applications for collateral relief.
See Felker v. Turpin, 518 U.S. 651, 657 (1996). An
individual may not file a second or successive § 2254
petition for a writ of habeas corpus (or the equivalent
thereof) without first receiving permission to do so from the
appropriate circuit court of appeals. The
“gatekeeping” mechanism created by 28 U.S.C.
§ 2244(3)(A) provides: “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.” The issue
of successiveness of a habeas petition may be raised by the
court sua sponte. Rodriguez v. Johnson, 104
F.3d 694, 697 (5th Cir. 1997); see Latimer v.
Warden, No. 6:10-721-JFA-WMC, 2010 WL 2720912, at *1
(D.S.C. July 08, 2010).
Petition filed in this case is an unauthorized successive
petition because it raises issues that could have been raised
in the first petition, which was denied on the merits.
See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005);
Howard v. Cartledge, No. 9:12-00711-DCN-BM, 2012 WL
3842274, at * 1 (April 12, 2012), report and
recommendation adopted, 2012 WL 3839236 (D.S.C. Aug. 30,
2012). Because Petitioner did not obtain authorization from
the Fourth Circuit Court of Appeals to file the Petition now
under review, this court does not have jurisdiction to
consider it and it is subject to summary dismissal without
service on the Respondent. See United States v.
Winestock, 340 F.3d 200, 205-06 (4th Cir. 2003);
Moody v. Maynard, 105 F. App'x 458, 464-65 (4th Cir.
it is recommended that the Petition for a Writ of Habeas
Corpus in this ...