United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel, United States District Court Judge.
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 11) recommending
that Petitioner's petition for a writ of habeas corpus be
dismissed. For the reasons set forth below, the Court
ADOPTS the R & R and the petition is
DISMISSED WITHOUT PREJUDICE, and a
Certificate of Appealability is DENIED.
October 1992, Petitioner pleaded guilty in South Carolina
state court to charges of murder, armed robbery and burglary
in the second degree. Petitioner had assistance of legal
counsel during the guilty plea negotiations, and was
sentenced to life incarceration for the murder conviction,
twenty-five years incarceration for the armed robbery
conviction, and fifteen years incarceration for the burglary
conviction. Petitioner did not appeal.
August 1995, Petitioner filed an application for
post-conviction relief on the basis of his legal counsel
failing to explain the term "aggravating
circumstances" and its impact to his guilty plea. The
state court held a hearing and denied relief, and the South
Carolina Supreme Court denied certiorari and dismissed the
appeal. In 2001, Petitioner filed his first federal habeas
petition, asserting, "How can Petitioner guilty plea be
considered valid when Petitioner didn't understand what
actually constitute guilt for the criminal aggravating
circumstances charged during October 23, 1992?"
Tyrone v. Warden, Evans Corr. Inst., et ah, No.
8:01-cv-4090-FBH (Dkt. No. 14 at 2). The petition was
dismissed on the merits, which the Court of Appeals affirmed.
See Id. (Dkt. No. 33). Petitioner then filed three
more petitions, each of which were dismissed on the merits as
unauthorized successive petitions. See No.
8:03-cv-0723-CMC (Dkt. No. 4); No. 8:06-cv-01247-CMC (Dkt.
No. 8); No. 2:1 l-cv-1486-CMC (Dkt. No. 15). The Court now
considers Petitioner's fifth federal habeas petition.
Review of R&R
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See, e.g., Mathews v. Weber, 423 U.S. 261,
270-71 (1976). The Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
Where a petitioner has not objected to the R&R, the Court
reviews the R & R to "only satisfy itself that there
is no clear error on the face of the record in order to
accept the recommendation." Fed.R.Civ.P. 72 advisory
committee's note. In the absence of objections to the
R&R, the Court need not give any explanation for adopting
the Magistrate Judge's analysis and recommendation.
See, e.g., Camby v. Davis, 718 F.2d 198, 199 (4th
Cir. 1983) ("In the absence of objection ... we do not
believe that it requires any explanation.").
Review of Petition for a Writ of Habeas Corpus
Roberson filed this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. A habeas petition is
"successive" if a previously filed habeas petition
was "adjudicated on the merits." Slack v.
McDaniel, 529 U.S. 473, 485-89 (2000). In order to file
a "successive" petition, the petitioner must first
obtain authorization from the United States Court of Appeals
for the Fourth Circuit. See, e.g., 28 U.S.C. §
2254(b)(3)(A) (mandating that "the applicant shall move
in the appropriate court of appeals for an order authorizing
the district court to consider the application"); Rule 9
of Rules Governing § 2254 ("Before 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 . . .");
Gonzales v. Crosby, 545 U.S. 524, 530 (2005) (noting
that "before the district court may accept a successive
petition for filing, the court of appeals must determine that
it presents a claim not previously raised that is sufficient
to meet § 2244(b)(2)'s new-rule or actual-innocence
provisions"). If the petitioner of a successive petition
did not first obtain the necessary authorization, the
District Court lacks jurisdiction to consider the merits of
the petition and, as a result, must dismiss. See, e.g.,
Burton v. Stewart, 549 U.S. 147, 153 (2007); Smart
v. Warden, Kershaw Corr'l Inst., No.
2:13-cv-2449-GRA-BHH, 2013 WL 6054475, at *3 (D.S.C. Nov. 15,
2013) (dismissing unauthorized successive petition for lack
Certificate of Appealability
certificate of Appealability will issue only on "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). Where the Court
denies relief on the merits, the petitioner must demonstrate
that "reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong." Slack v. McDaniel, 529 U.S. at 484.
Petitioner made no objections to the R & R, the Court
reviews the R & R for clear error. Upon review of the
record, the Court finds that the Magistrate Judge correctly