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Dawson v. Warden of Lee Correctional Institution

United States District Court, D. South Carolina

February 28, 2018

Russell Dawson, #161707, Petitioner,
v.
Warden of Lee Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          Jacquelyn D. Austin United States Magistrate Judge

         Russell Dawson (“Petitioner”), a state prisoner proceeding pro se, initiated this action by filing a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254.[1] Petitioner files this action in forma pauperis under 28 U.S.C. § 1915. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02 (D.S.C.), the undersigned is authorized to review such petitions for relief and to submit findings and recommendations to the District Court. This Petition is successive and should be summarily dismissed without prejudice.

         APPLICABLE LAW

         Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in the above-captioned case. The review was conducted pursuant to the procedural provisions of 28 U.S.C. § 1915, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. 104-132, 110 Stat. 1214, 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). This Court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that Petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts (2012). As a pro se litigant, Petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). However, even under this less stringent standard, the petition in this case is subject to summary dismissal. 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         DISCUSSION

         Petitioner is currently incarcerated at the Broad River Correctional Institution in the South Carolina Department of Corrections and is serving two consecutive 25-year sentences for his conviction of two counts of armed robbery. Petitioner was sentenced by the Darlington County General Sessions Court on February 7, 1990.

         Although 28 U.S.C. § 2254 is the appropriate vehicle for a state prisoner to challenge a state conviction, relief under the statute is unavailable to the Petitioner because the instant petition is successive. This is the fourth § 2254 petition that Petitioner has submitted to this Court in his efforts to challenge the constitutionality of his state court criminal convictions. Petitioner does not indicate anywhere in his petition that he sought and obtained permission from the United States Court of Appeals for the Fourth Circuit before filing this fourth § 2254 petition.

         On March 22, 2000, Petitioner filed his first petition in this Court for relief under 28 U.S.C. § 2254, which was dismissed with prejudice on October 2, 2000. See Dawson v. Catoe, No. 2:00-cv-900-JFA (D.S.C. 2000). On July 3, 2003, Petitioner filed his second petition in this Court for relief under 28 U.S.C. § 2254, which was dismissed as successive on August 25, 2003. See Dawson v. Burtt, 2:03-cv-2206-JFA (D.S.C. 2003). On March 8, 2007, Petitioner filed his third petition in this Court for relief under 28 U.S.C. § 2254, which was also dismissed as successive on June 19, 2007. See Dawson v. Burtt, 2:07-cv-0669-JFA (D.S.C. 2007).

         This fourth habeas petition is successive and Petitioner has failed to obtain authorization from the Fourth Circuit to file a successive petition. On April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 (the “AEDPA”) amended 28 U.S.C. § 2254 and other habeas statutes:

The AEDPA effected a number of substantial changes regarding the availability of federal postconviction relief to individuals convicted of crimes in federal and state courts. Of particular importance here are the provisions of the AEDPA 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 . . . (1996). Under the AEDPA, an individual may not file a second or successive § 2254 petition for a writ of habeas corpus or § 2255 motion to vacate sentence without first receiving permission to do so from the appropriate circuit court of appeals.

In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (footnote omitted). The “gatekeeping” mechanism created by the AEDPA amended § 2244(b) to provide:

The prospective applicant must file in the court of appeals a motion for leave to file a second or successive habeas application in the district court. § 2244(b)(3)(A). A three-judge panel has 30 days to determine whether “the application makes a prima facie showing that the application satisfies the requirements of” § 2244(b). § 2244(b)(3)(c); see §§ 2244(b)(3)(B), (D).

Felker v. Turpin, 518 U.S. 651, 657 (1996).

         This action qualifies as a second or successive § 2254 action because Petitioner's first § 2254 action filed in this Court in 2000, pertaining to the same conviction for which he is serving his sentence, was decided on the merits. See Order, Dawson v. Catoe, et al., No. 2:00-cv-900-JFA (D.S.C. Oct. 3, 2000).[2] To be considered “successive, ” the second or subsequent petition must be an attack on the same conviction attacked in the first petition, and the first petition must have been adjudicated on the merits. See In re Williams, 444 F.3d 233, 236 (4th Cir. 2006). Here, the initial ...


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