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Roberson v. Warden, Lieber Correctional Institution

United States District Court, D. South Carolina, Charleston Division

May 22, 2018

Tyrone Roberson, #191327, Petitioner,
v.
Warden, Lieber Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          MARY, GORDON BAKER, UNITED STATES MAGISTRATE JUDGE

         Tyrone 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:

         I. Pro Se Habeas Review

         Under 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).

         Pro 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).

         II. Background

         The 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.

         On 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 Court's decision).

         Subsequently, 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 corpus denied.”).

         Petitioner has now filed another (fourth) federal habeas petition. (DE#1).

         III. Discussion

         This 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.

         For a 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.

         The 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 ...


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