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Rivera v. Warden Tyger River Correctional Institution

United States District Court, D. South Carolina

September 11, 2017

Marlon Rivera, Petitioner,
v.
Warden, Tyger River Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          Kaymani D. West, United States Magistrate Judge

         A 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).

         I. Factual Background

         Marlon 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.

         II. Standard of Review

         Under 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).

         This 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).

         Furthermore, 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.

         III. Discussion

         If a 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.[1] 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).

         The 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. 2004).

         IV. Recommendation

         Accordingly, it is recommended that the Petition for a Writ of Habeas Corpus in this ...


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