United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOL MERCHANT UNITED STATES MAGISTRATE JUDGE.
William Washington, a state prisoner at the McCormick
Correctional Institution, part of the South Carolina
Department of Corrections, filed this Petition for Writ of
Habeas Corpus pro se and in forma pauperis, pursuant
to 28 U.S.C. § 2241. In this Petition, Petitioner
challenges his 1999 criminal sentence for armed robbery.
Petition, ECF No. 1 at 2; Petitioner's Brief, ECF No. 1-1
at 2-3. In March 1999, after a jury trial in the Court of
Common Pleas for Florence County, Petitioner was found guilty
of armed robbery and sentenced to life without the
possibility of parole. ECF No. 1-1 at 2. Petitioner's
ground for habeas relief is that his sentence exceeded the
statutory maximum for armed robbery in South Carolina where
the state allegedly unconstitutionally relied upon prior
crimes that were inapplicable. ECF No. 1 at 8. Specifically,
he argues that these prior convictions should not have been
applicable to trigger the Recidivist Act,  as his prior
armed robbery convictions occurred before the Recidivist Act
became effective. ECF No. 1-1 at4-6.
established local procedure in this judicial district, a
careful review has been made of the pro se petition filed in
the above-captioned case pursuant to the procedural
provisions of the Anti-Terrorism and Effective Death Penalty
Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (AEDPA), 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); Nasim v. Warden. Md.
House of Corr.. 64 F.3d 951 (4th Cir. 1995); and
Todd v. Baskerville. 712 F.2d 70 (4th Cir. 1983).
Pro se petitions are also held to a less stringent standard
than those drafted by attorneys, and a federal district court
is charged with liberally construing a petition filed by a
pro se litigant to allow for the development of a potentially
meritorious case. See Hughes v. Rowe. 449 U.S. 5, 9
(1980) (quoting Haines v. Kerner. 404 U.S. 519, 520
(1972)); Gordon v. Leeke. 574 F.2d 1147, 1151 (4th
Cir. 1978) (citing Rice v. Olson. 324 U.S. 786,
791-92 (1945); Holiday v. Johnston, 313 U.S. 342,
this Court is charged with screening Petitioner's lawsuit
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. The requirement of liberal construction does not mean
that the court can ignore a clear failure in the pleading to
allege facts which set forth a claim currently cognizable in
a federal district court. See Weller v. Dep't of Soc.
Servs.. 901 F.2d 387, 391 (4th Cir. 1990). Such is the
undersigned construes the Petition as seeking habeas corpus
relief pursuant to 28 U.S.C. § 2254. See generally
In re Wright. 826 F.3d 774, 783 (4th Cir. 2016)
["[W]hen a prisoner being held 'pursuant to the
judgment of a State court' files a habeas petition
claiming the execution of his sentence is in violation of the
Constitution, laws, or treaties of the United States, the
more specific § 2254 and all associated statutory
requirements shall apply, regardless of the statutory label
the prisoner chooses to give his petition."] (internal
quotation marks omitted) (quoting Walker v.
O'Brien. 216 F.3d 626, 633 (7th Cir. 2000)).
However, Petitioner previously filed a § 2254 petition
in this Court on August 23, 2005, and in an order entered
July 13, 2006, the Honorable G. Ross Anderson, Jr., Senior
United States District Judge, granted the respondents'
motion for summary judgment and dismissed the action with
prejudice. See Washington v. Rushton. No.
0:05-2394-GRA-BM, 2006 WL 2050582 (D.S.C. July 13, 2006). On
January 19, 2011, Petitioner filed a second § 2254
Petition, which was dismissed without prejudice. See
Washington v. Cartledee. No. 9:11-148-JFA-BM
(D.S.C.). Petitioner then filed a prior § 2241
petition in June 2014 (Case Number 14-2244-MGL-BM), which was
summarily dismissed without prejudice as a successive §
2254 petition. Washington v. Cartledee. No.
9:14-2244-MGL-BM, 2017 WL 2927584, at *2 (D.S.C. July 10,
the AEDPA, an individual may not file a second or successive
§ 2254 petition for a writ of habeas corpus or [a 28
U.S.C.] § 2255 motion to vacate sentence without first
receiving permission to do so from the appropriate circuit
court of appeals." In re Vial,, 115 F.3d 1192,
1194 (4th Cir. 1997). The "gatekeeping" mechanism
created by the AEDPA amended § 2244(b) to provide:
The prospective applicant must file in the court of appeals a
motion for leave to file a second or successive habeas
application in the district court. § 2244(b)(3)(A). A
three-judge panel has 30 days to determine whether "the
application makes a prima facie showing that the application
satisfies the requirements of § 2244(b). §
2244(b)(3)(C); see §§ 2244(b)(3)(B), (D).
Felker v. Turpin. 518 U.S. 651, 657 (1996).
Therefore, since Petitioner's previous § 2254
petition (Civil Action No. 0:05-2394-GRA-BM) was decided on
the merits, the Petition filed in this action should be
summarily dismissed because it is successive and there is no
indication that Petitioner requested and received permission
from the United States Fourth Circuit Court of Appeals before
he submitted it to this Court. See Slack v.
McDaniel. 529 U.S. 473, 485-89 (2OOO)[to qualify as a
"successive" petition, prior petition must have
been adjudicated on the merits].
so even if Petitioner is attempting to bring this successive
petition on grounds not raised in his original petition, as
under the AEDPA an individual may not file a second or
successive § 2254 petition for a writ of habeas corpus
(or the equivalent thereof) without first receiving
permission to do so from the appropriate circuit court of
appeals, as the "gatekeeping"
mechanism of 28 U.S.C. § 2244(b)(3)(A) provides that,
"[b]efore 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." See In re Williams. 364
F.3d 235, 238 (4th Cir. 2004) [the "initial
determination of whether a claim satisfies" the
requirements of § 2244(b)(2) "must be made by a
court of appeals"]; In re Fowlkes, 326 F.3d
542, 544 (4th Cir. 2003) ["Since Fowlkes has previously
filed a section 2254 motion, he may only file a successive
section 2254 motion if he receives authorization from this
court [the Fourth Circuit Court of Appeals] under the
standard established in section 2244(b)(3)(C)."];
United States v. Winestock. 340 F.3d 200, 205 (4th
Cir. 2OO3)["In the absence of pre-filing authorization
[from the court of appeals], the district court lacks
jurisdiction to consider an application containing abusive or
on the foregoing, it is recommended that the instant Petition
for a Writ of Habeas Corpus be summarily dismissed without
prejudice and without requiring Respondent to file a return.
attention is directed to the important notice onroe next
of Right to File Objections to Report ...