United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Roberson (“Petitioner”) is a state prisoner
incarcerated at Lieber Correctional Institution located in
Ridgeville, in South Carolina. He has filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. He
is proceeding pro se and in forma pauperis.
This matter is before the Court pursuant to 28 U.S.C.
§636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c)
(D.S.C.) for initial screening. Having reviewed the petition
and applicable law, the Magistrate Judge recommends that this
§ 2254 petition is an unauthorized successive petition
that should be summarily dismissed,
for the following reasons:
Pro Se Habeas Review
established local procedure in this judicial district, the
Magistrate Judge has carefully reviewed the petition pursuant
to the procedural provisions of the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
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).
se pleadings are given liberal construction and are held
to a less stringent standard than those drafted by attorneys.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). Courts liberally construe pro se claims to
allow the development of a potentially meritorious case.
Haines v. Kerner, 404 U.S. 519, 520 (1972);
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978). However, “[t]he ‘special judicial
solicitude' with which a district court should view ...
pro se complaints does not transform the court into
an advocate. United States v. Wilson, 699 F.3d 789,
797 (4th Cir. 2012), cert. denied, 133 S.Ct. 2401
(2013). Only those questions which are squarely presented to
a court may properly be addressed.” Weller v. Dept.
of Soc. Servs. for City of Baltimore, 901 F.2d 387, 391
(4th Cir. 1990). Giving “liberal construction”
does not mean that the Court can ignore a petitioner's
clear failure to allege facts that set forth a cognizable
claim. “Principles requiring generous construction of
pro se complaints ... [do] not require ... courts to
conjure up questions never squarely presented to them.”
Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986).
record reflects that Petitioner has filed at least four prior
§ 2254 petitions regarding his 1992 convictions for
murder, armed robbery, and burglary 2nd degree. In
2002, this District Court considered the Petitioner's
first habeas petition on the merits and denied relief. See
No. 8:01-cv-4090-FBH-BHH (see DE#14, Order of 08/27/2002; and
see, DE#33 copy of judgment of Fourth Circuit Court of
Appeals affirming the judgment of the District Court). The
following facts are taken from the Court's Order denying
relief in the first habeas proceeding.
October 23, 1992, Petitioner (with the assistance of legal
counsel) pleaded guilty to charges of murder, armed robbery,
and burglary 2nd degree. Petitioner was sentenced
to life imprisonment for the murder conviction, 25 years
consecutive for the armed robbery conviction, and 15 years
consecutive for the burglary conviction. Petitioner did not
appeal. On August 16, 1995, Petitioner filed an application
for state post-conviction relief (“PCR”),
alleging claims including ineffective assistance of counsel
regarding plea advice. After a hearing, the state court
denied relief. The South Carolina Supreme Court denied
certiorari and dismissed the appeal. Remittitur was issued on
June 8, 2001. Petitioner then sought federal habeas relief.
See No. 8:01-cv-4090-FBH-BHH. The District Court found that
the Petitioner's claim was both procedurally defaulted
and substantively meritless. (Id., DE#14, Order
citing Transcript at p. 11, “it is evident from the
record that petitioner's guilty plea was freely and
voluntarily given, with a full understanding that the finding
of aggravating circumstances was a key part of the negotiated
plea, and with a full understanding of the consequences of
his plea and the judge's finding of aggravated
circumstances. . . Even if petitioner's claim was not
procedurally defaulted, his petition lacks merit and he is
not entitled to habeas corpus relief.”). The Fourth
Circuit Court of Appeals affirmed the District Court's
denial of habeas relief. See No. 8:01-cv-4090-FBH-BHH (DE#
33, copy of appellate judgment affirming the District
Petitioner filed three more federal habeas petitions, which
have all been summarily dismissed as unauthorized successive
petitions. See Nos. 8:03-cv-723-CMC-BHH (see DE#4, Order of
04/11/2003, adopting Report and Recommendation and dismissing
petition as successive); 8:06-cv-1247-CMC-BHH (same, DE#8,
Order of 05/31/2006); and 2:11-cv-1486-CMC-BHH (same, DE#15,
Order of 09/15/2011). See also, In re Roberson, 552
U.S. 1021 (Nov. 13, 2007) (“Petition for writ of habeas
has now filed another (fourth) federal habeas petition.
Court must screen a § 2254 petition 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 the Rules Governing Section
2254 Cases in the United States District Courts. Review of
the record reflects that this is Petitioner's fourth
§ 2254 petition regarding the same 1992 conviction and
sentence. This Court may properly take judicial notice of
public records, including the Court's own docket. See
Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th
Cir.1989); Assa'ad-Faltas v. South Carolina,
2012 WL 6103204 (D.S.C.), adopted by 2012 WL 6106421
(D.S.C.) (“the District Court clearly had the right to
take notice of its own files and records”). Petitioner
does not indicate, and the record does not reflect, that
Petitioner has obtained permission from the Fourth Circuit
Court of Appeals to file a successive petition for habeas
corpus pursuant to 28 U.S.C. § 2254.
petition to be “successive, ” the dismissal of
the first habeas petition must have been “on the
merits, ” rather than for instance, a dismissal for
lack of exhaustion. Slack v. McDaniel, 529 U.S. 473,
48589 (2000); Harvey v. Horan, 278 F.3d 370, 379
(4th Cir. 2002), abrogated on other grounds by Skinner v.
Switzer, 131 S.Ct. 1289 (2011). The record reflects that
this Court considered the merits of Petitioner's first
habeas petition at considerable length, found the
Petitioner's argument to be procedurally defaulted and
meritless, and dismissed the petition with prejudice.
AEDPA requires that before a successive application 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.” 28 U.S.C.
§ 2244 (b)(3)(A). Rule 9 of Rules Governing Section 2254
and 2255 Cases also expressly provides that “[b]efore
presenting a second or successive petition, the petitioner
must obtain an order from the appropriate court of appeals
authorizing the district court to consider the petition as
required by 28 U.S.C. § 2244(b)(3) and (4).” Thus,
Petitioner must first obtain authorization from the United
States Court of Appeals for the Fourth Circuit before this
Court may consider the present successive § 2254
petition. SeeGonzalez v. Crosby, 545 U.S.
524, 530 (2005) (explaining that “before the district
court may accept a successive petition for filing, the court
of appeals must determine that it presents a claim not