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Degree v. Davis

United States District Court, D. South Carolina

August 29, 2018

Jeffrey Degree, #308714, Petitioner,
v.
Warden Davis, Respondent.

          REPORT AND RECOMMENDATION

          Jacquelyn D. Austin United States Magistrate Judge

         Jeffrey Degree (“Petitioner”), proceeding pro se, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Petitioner is a prisoner committed to the South Carolina Department of Corrections (“SCDC”), and he is incarcerated at Kirkland Correctional Institution. He challenges his conviction of kidnaping and criminal sexual conduct (“CSC”). The Petition is subject to summary dismissal.

         BACKGROUND

         Petitioner challenges his April 19, 2005, state conviction of kidnaping and CSC entered in the Cherokee County Court of General Sessions. [Doc. 1 at 1-2.] He contends that due to the fundamentally unfair procedures during the trial phase and PCR phase, he was convicted although he is innocent. [Id. at 5.] He requests that his guilty plea resulting in his criminal conviction be set aside. [Id. at 14-15.]

This Court takes judicial notice [*] that Petitioner has filed several prior habeas actions pursuant to 28 U.S.C. § 2254 in this Court challenging the same conviction. See, e.g., Degree v. Cartledge, C/A No. 8:16-3887-BHH-JDA; Degree v. Cartledge, C/A No. 8:14- 2959-BHH-JDA. This Court dismissed those cases without prejudice because they were each successive to another § 2254 action filed by Petitioner, which was decided on the merits, and Petitioner had not obtained permission from the Fourth Circuit Court of Appeals to file it. See, e.g., Report and Recommendation, Degree v. Cartledge, C/A No. 8:14-2959-BHH-JDA (August 11, 2014), ECF No. 10, adopted by ECF No. 13 (Sept. 19, 2014).

         This Court also takes judicial notice that on June 17, 2008, Petitioner filed a habeas action pursuant to 28 U.S.C. § 2254 in this Court seeking to overturn the same state conviction. See Report and Recommendation, Degree v. State, C/A No. 3:08-2251-CMC-JRM (Jan. 9, 2009), ECF No. 15. The Honorable Cameron McGowan Currie adopted the Report and Recommendation and granted Respondent's motion for summary judgment, dismissing the action with prejudice. See Order, Degree v. State, C/A No. 3:08-2251-CMC-JRM (Feb. 2, 2009), ECF No. 19.

         STANDARD OF REVIEW

         Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) DSC, the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district court. Petitioner filed this action in forma pauperis pursuant to 28 U.S.C. § 1915. This statute authorizes the Court to dismiss a case if it is satisfied that the action fails to state a claim on which relief may be granted, is frivolous or malicious, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         Additionally, 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, Rules Governing Section 2254 Cases in the U.S. District Courts (2012); see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (2012) (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).

         As a pro se litigant, Petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). However, even under this less stringent standard, the Petition is subject to summary dismissal. 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         DISCUSSION

         This action should be dismissed because it is another successive § 2254 habeas action seeking to overturn the same conviction, and Petitioner has not obtained permission from the United States Court of Appeals for the Fourth Circuit authorizing a successive § 2254. In fact, this Court takes judicial notice that Petitioner apparently filed a motion under 28 U.S.C. § 2244 requesting authorization to file a second or successive § 2254 action in the district court; but, the Fourth Circuit Court of Appeals denied the motion. See Degree v. Cartledge, C/A No. 8:14-2959-BHH-JDA, ECF No. 16, 17.

         For the reasons already explained in Degree v. Cartledge, C/A No. 8:14-2959-BHH-JDA, this Court does not have jurisdiction to consider Petitioner's successive § 2254 action.

         RECO ...


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