United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
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
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).
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.
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).
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).
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
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.
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 §