United States District Court, D. South Carolina, Anderson/Greenwood Division
Larry G. Harvin, Petitioner,
Interim Warden Joel Anderson, Respondent.
Bryan Harwell United States District Judge
Larry G. Harvin, a state prisoner proceeding pro se,
initiated this action by filing a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. See
ECF No. 1. The matter is before the Court for review of
Petitioner's objections to the Report and Recommendation
(“R & R”) of United States Magistrate Judge
Jacquelyn D. Austin, who recommends summarily dismissing
Petitioner's § 2254 petition as
successive. See ECF Nos. 8 & 10.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b).
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
Magistrate Judge explains, Petitioner's instant §
2254 petition is the fourth one he has filed in this Court
challenging his convictions for murder and armed
robbery. See R & R at p. 2. The
Magistrate Judge recommends dismissing the instant petition
as successive, noting there is no indication that Petitioner
obtained pre-filing authorization from the United States
Court of Appeals for the Fourth Circuit before filing it.
Id. at pp. 4-5.
objects to the R & R, arguing his instant § 2254
petition (filed this year) is not successive because he filed
it after being denied relief in a state habeas corpus action
filed in the South Carolina Supreme Court last year
(2017). See ECF No. 10. Petitioner
asserts that because he raised an insufficient evidence claim
in his first § 2254 petition (filed in 2003 and
dismissed in 2004) and this Court found that claim
procedurally barred, he should now be able to pursue the
claim since he raised it to the state court via his recently
denied state habeas petition. See id.
is correct that he challenged the sufficiency of the evidence
in his 2003 petition and that this Court found this claim
procedurally barred. See Harvin v. Rushton, No.
3:03-cv-00688-GRA, 2004 WL 7323529, at *1-3 (D.S.C. Jan. 16,
2004) (finding Petitioner's “insufficiency of
evidence claim” was procedurally defaulted). However,
the “dismissal of a habeas petition for procedural
default is a dismissal on the merits for purposes of
determining whether a habeas petition is successive.”
Harvey v. Horan, 278 F.3d 370, 379 (4th Cir. 2002),
abrogated on other grounds by Skinner v. Switzer,
562 U.S. 521 (2011). Moreover, the Court entered judgment
granting the respondent's motion for summary judgment and
dismissed the 2003 action with prejudice. See
Harvin, No. 3:03-cv-00688-GRA, at ECF No. 27 (D.S.C.
Jan. 21, 2004); see generally Shoup v. Bell & Howell
Co., 872 F.2d 1178, 1181 (4th Cir. 1989) (“A
summary judgment dismissal is a final adjudication
on the merits . . . .”); see, e.g.,
Washington v. Cartledge, No. 4:16-cv-00017-PMD-TER,
2016 WL 1444620, at *2 (D.S.C. Mar. 9, 2016) (“[T]he
previous petition was dismissed with prejudice as summary
judgment on the merits was entered in favor of respondent.
Accordingly, the instant [p]etition is successive.”),
adopted by, 2016 WL 1427359 (D.S.C. Apr. 12, 2016).
this Court decided Petitioner's first § 2254
petition on the merits, the petition currently before the
Court is successive. See Slack v. McDaniel, 529 U.S.
473, 485-89 (2000) (defining a successive petition as one
filed after an initial petition was decided on its merits);
Harvey, 278 F.3d at 380 (citing cases including
Slack and recognizing that“[b]y every
reckoning, a dismissal for procedural default is a dismissal
on the merits”). Additionally, there is no evidence showing
Petitioner obtained pre-filing authorization from the Fourth
Circuit to file a successive petition. See 28 U.S.C.
§ 2244(b)(3)(A) (“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.”); Easter v.
Johnson, 107 Fed.Appx. 348, 349 (4th Cir. 2004)
(“In the absence of pre-filing authorization, the
district court is without jurisdiction to entertain the
successive petition.”). The Court lacks jurisdiction
over Petitioner's current § 2254 petition and must
“The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rule 11(a) of the Rules Governing Section
2254 Cases. A certificate of appealability will not issue
absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
When the district court denies relief on the merits, a
petitioner satisfies this standard by demonstrating that
reasonable jurists would find that the court's assessment
of the constitutional claims is debatable or wrong. Slack
v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El
v. Cockrell, 537 U.S. 322, 336-38 (2003). When the
district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the petition states
a debatable claim of the denial of a constitutional right.
Slack, 529 U.S. at 484-85. In this case, the Court
concludes that Petitioner has failed to make the requisite
showing of “the denial of a constitutional
upon the foregoing, the Court overrules Petitioner's
objections and adopts and incorporates by reference the
Magistrate Judge's R & R [ECF No. 8]. Accordingly,
the Court DISMISSES Petitioner's §
2254 petition without prejudice and without
requiring Respondent to file an answer or return. The Court
DENIES a certificate of appealability
because Petitioner has not made ...