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. 8) recommending
that Petitioner's petition for a writ of habeas corpus
(Dkt. No. 1) 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.
August 2005, Petitioner was found guilty by a South Carolina
state court jury of murder and possession of a firearm during
a crime of violence. Petitioner was sentenced to life
imprisonment for the murder conviction and five years for the
firearm possession. Petitioner was also sentenced to ten
years imprisonment for a pending probation violation. On
appeal, Petitioner argued that the court improperly admitted
into evidence letters allegedly written to his co-defendants.
In 2008, the appeal was dismissed. Petitioner then filed
three applications for post-conviction relief in state court,
arguing that he was unlawfully in custody on the basis of an
insufficient indictment, ineffective assistance of trial and
appellate counsel, and prosecutorial misconduct. Each
application was dismissed.
March 2012, Petitioner filed his first petition for federal
habeas corpus pursuant to 28 U.S.C. § 2254, arguing
numerous grounds for ineffective assistance of trial and
appellate counsel. See Collins v. Padula, No.
2:12-710-CMC-BHH (Dkt. No. 1). The District Court considered
the petition's merits and dismissed with prejudice,
finding that Petitioner failed to demonstrate he was
prejudiced as a result of counsels' deficient performance
and, to the extent Petitioner argued the trial court erred in
admitting specific evidence, Petitioner had a full and fair
opportunity to litigate the claim in state court.
See No. 2:12-710-CMC (Dkt. No. 66).Petitioner
appealed to the Court of Appeals for the Fourth Circuit,
which dismissed for lack of jurisdiction on the basis of an
untimely appeal. See Collins v. Padula, 575 F.Appx.
131 (4th Cir. 2014) (Mem).
August 2015, Petitioner filed his second federal habeas
petition on the grounds of "extrinsic fraud."
See Collins v. McFadden, No. 2:15-cv-3378-RMG-MGB
(Dkt. No. 1 at 5). This Court considered the petition's
merits and dismissed it as an unauthorized successive
petition. See No. 2:15-cv-3378-RMG (Dkt. No. 22). In
June 2018, Petitioner filed his third petition for habeas
corpus, which the Court considers now. Petitioner again
alleges ineffective assistance of counsel and challenges the
state court's admission of certain letters into evidence.
See Collins v. Williams, No. 2:18-cv-1490-RMG-MGB
(Dkt. No. 1).
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
Collins 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. Inst., No. 2:13-cv-2449-GRA,
2013 WL 6054475, at *3 (D.S.C. Nov. 15, 2013) (dismissing
unauthorized successive petition for lack of jurisdiction).
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. 473, 484