United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
GORDON BAKER UNITED STATES MAGISTRATE JUDGE.
Collins (“Petitioner”), a state prisoner
proceeding pro se, has filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is incarcerated at Broad River Correctional
Institution located in Columbia, South Carolina. Pursuant to
28 U.S.C. §636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(c)(D.S.C.), pretrial matters are assigned to
United States Magistrate Judge. Having reviewed the petition
and applicable law, the Magistrate Judge recommends that this
§ 2254 petition is an unauthorized successive petition
and should be summarily dismissed without
prejudice to Petitioner's ability to seek
permission from the Fourth Circuit Court of Appeals to file a
successive petition, 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. 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.
United States v. Wilson, 699 F.3d 789, 797 (4th
Cir.2012). “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).
following facts are taken from the Petition and from the
Report and Recommendation in the first habeas case brought by
Petitioner. See Collins v. Padula, Case No.
2:12-710-CMC-BHH, see DE# 61, Report and Recommendation
setting forth background facts).
County Grand Jury indicted Petitioner for murder, conspiracy
to commit murder, unlawful possession of a pistol, and
possession of a firearm during a crime of violence. At the
time of the murder, Petitioner was on probation for a prior
conviction for reckless homicide. Petitioner received a jury
trial in the Court of Common Pleas for the Third Judicial
Circuit (Lee County, South Carolina). Petitioner's
counsel moved for a directed verdict as to the conspiracy
charge, which the state judge granted. The state judge also
struck the charge of unlawful possession of a pistol. On
August 18, 2005, the jury convicted Petitioner of the
remaining two charges, i.e. murder and possession of a
firearm during a crime of violence. (DE# 1, ¶¶
1-3). Petitioner was sentenced to life imprisonment.
Petitioner appealed, challenging the admission of several
letters he allegedly wrote to his co-defendant. In an
unpublished opinion filed on February 11, 2008, the South
Carolina Court of Appeals dismissed Petitioner's appeal.
See State v. Collins, 2008 WL 9832893 (Ct.App.S.C.
Feb. 11, 2008) (per curiam). Remittitur was issued on
February 27, 2008. Petitioner indicates he did not seek
further review. (DE#1, ¶ 9(h)).
February 22, 2008, April 26, 2010, and June 22, 2010,
Petitioner filed three consecutive applications for
post-conviction relief (“PCR”) in state court.
Petitioner raised numerous issues, including ineffective
assistance of counsel, prosecutorial misconduct, and the
sufficiency of the indictment. On December 22, 2009, the
state court denied the first PCR application. Subsequently,
the state court merged the second and third PCR applications,
and issued a Final Order of Dismissal on January 6, 2012.
Petitioner appealed. The Supreme Court of South Carolina
dismissed the appeal on May 3, 2012. Remittitur was issued on
May 31, 2012.
record reflects that on or about March 5, 2012, Petitioner
filed his first federal petition for habeas corpus pursuant
to 28 U.S.C. § 2254. See Collins v. Padula,
Case No. 2:12-710-CMC-BHH. Petitioner raised numerous grounds
of alleged ineffective assistance of counsel. This Court
considered the habeas petition on the merits and dismissed
with prejudice. (Id., DE# 66, Order of 08/23/2013).
On appeal, the Fourth Circuit Court of Appeals dismissed for
lack of jurisdiction because the notice of appeal was not
timely filed. See Collins v. Padula, 575 Fed.Appx.
131 (4th Cir. June 4, 2014) (per curiam).
on May 19, 2014, Petitioner filed a fourth application for
PCR relief, which was denied on August 16, 2014 as
“untimely” and “successive.” The
state court observed that Petitioner “had the
opportunity to litigate all issues related to his case at the
evidentiary hearing for his first PCR application on October
26, 2009.” (DE# 1-1, Order). Petitioner's appeal of
the denial of his fourth PCR application was dismissed on
August 4, 2015.
August 20, 2015, Petitioner filed a second federal habeas
petition pursuant to 28 U.S.C. § 2254. See Collins
v. McFadden, Case No. 2:15-cv-3378-RMG-MGB.
Petitioner again sought to challenge his 2005 conviction.
Petitioner asserted that he was in custody unlawfully due to
“extrinsic fraud” and asked for a new trial. This
Court dismissed the petition as an unauthorized successive
petition. (Id., DE#22, Order of 02/02/2016). See
Collins v. McFadden, 2016 WL 411009 (D.S.C. Feb. 2,
about June 1, 2018, Petitioner filed a third (present)
federal petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. See Collins v. Williams, Case
No. 2:18-cv-1490-RMG-MGB. As before, Petitioner alleges
ineffective assistance of counsel and challenges the state
court's evidentiary ruling regarding the admission of
some letters allegedly written by petitioner to his
co-defendant. (DE# 1 at 5-7).