United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Jerome Lemon (“Petitioner”), a state prisoner
proceeding pro se, has filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is incarcerated at MacDougall Correctional
Institution located in Ridgeville, South Carolina. Pursuant
to 28 U.S.C. §636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(c)(D.S.C.), pretrial matters are assigned to
United States Magistrate Judge. Having reviewed the petition
and applicable law, the Magistrate Judge recommends that this
§ 2254 petition is an unauthorized successive petition
and should be summarily dismissed without
prejudice to Petitioner's ability to seek
permission from the Fourth Circuit Court of Appeals to file a
successive petition, for the following reasons:
Pro Se Habeas Review
established local procedure in this judicial district, the
Magistrate Judge has carefully reviewed the petition pursuant
to the procedural provisions of the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. 104-132, 110 Stat. 1214, 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).
se pleadings are given liberal construction and are held
to a less stringent standard than those drafted by attorneys.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). Courts liberally construe pro se claims to allow the
development of a potentially meritorious case. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir.1978). However,
“[t]he ‘special judicial solicitude' with
which a district court should view ... pro se complaints does
not transform the court into an advocate. Only those
questions which are squarely presented to a court may
properly be addressed.” Weller v. Dept. of Soc.
Servs. for City of Baltimore, 901 F.2d 387, 391 (4th
Cir.1990). Giving “liberal construction” does not
mean that the Court can ignore a petitioner's clear
failure to allege facts that set forth a cognizable claim.
United States v. Wilson, 699 F.3d 789, 797 (4th
Cir.2012). “Principles requiring generous construction
of pro se complaints ... [do] not require ... courts to
conjure up questions never squarely presented to them.”
Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985).
following facts are taken from the Petition and from the
first habeas case brought by Petitioner. See Lemon v.
Warden, No. 8:08-cv-1055-RBH-BHH (DE#26, Report and
Recommendation setting forth background facts, and DE#35,
Order of 03/19/09, adopting Report and Recommendation).
1998, the petitioner was indicted for murder and first degree
criminal sexual conduct (“CSC”). Petitioner
received a jury trial (March 15-18, 1999), and the jury found
him guilty. The Honorable Gerald C. Smoak, Jr., sentenced
petitioner to thirty (30) years for the manslaughter charge
and thirty (30) years for the CSC charge, to run
concurrently. Petitioner appealed. His appointed counsel
filed an Anders brief on March 5, 2001, raising the
issue of whether the trial judge had erred in charging the
jury on the lesser included offense of voluntary manslaughter
when the evidence allegedly did not support such charge. On
April, 5, 2002, the South Carolina Supreme Court denied the
appeal in an unpublished opinion, State v. Lemon,
No. 2002 UP-032 (Ct. App. April 5, 2002). Remittitur was
issued on April 26, 2002.
August 13, 2002, Petitioner filed an application for
post-conviction relief (“PCR”). He alleged that
counsel was ineffective: 1) for not objecting to the trial
court's submission of voluntary manslaughter as a lesser
included offense of murder to the jury; 2) for not objecting
to the trial court's omission of a jury instruction on
the voluntariness of the [petitioner's] statements to
police; 3) for not requesting that the trial court issue a
more complete charge of law in response to the jury's
request to be reinstructed on the law; 4) for not objecting
to the trial court's Allen charge to the jury absent any
indication such a charge was necessary; 5) for not objecting
to evidence of the [petitioner's] purchase and use of
crack cocaine in order to preserve for appeal the trial
court's denial of the motion in limine to
exclude such evidence; 6) for not objecting to the
solicitor's allegedly improper bolstering of the
credibility of three state witnesses on direct examination;
7) for not objecting to the solicitor's improper
bolstering of Allen Cromwell's credibility by use of
prior inconsistent statements; and 8) for not presenting
favorable witness and evidence. At the PCR hearing on June
16, 2004, Petitioner added a ninth claim, i.e. he alleged
that trial counsel had been ineffective for not objecting to
the Solicitor's closing argument. Petitioner was present
at the hearing and represented by new counsel. After the
hearing, Judge Doyet A. Early, III denied PCR relief on
September 23, 2004.
appealed the denial of PCR relief. He raised four issues,
alleging that trial counsel had been ineffective for: 1) not
requesting a charge on the jury's assessment of the
voluntariness of a statement; 2) not renewing objections to
prior crimes evidence that surfaced at trial; 3) not calling
favorable defense witnesses; and 4) not objecting to the
Solicitor's allegedly improper closing argument. On
October 30, 2007, the South Carolina Court of Appeals denied
the petition for a writ of certiorari. Remittitur was issued
on November 15, 2007.
about April 3, 2008, Petitioner filed his first federal
petition for habeas corpus pursuant to 28 U.S.C. § 2254.
See Lemon v. Warden, No. 8:08-cv-1055-RBH--BHH.
Petitioner alleged that his counsel had been ineffective for:
1) not objecting to the trial court's submission of
voluntary manslaughter as a lesser included offense; 2) not
objecting to the trial court's instruction to the jury
regarding the voluntariness of Petitioner's statements;
3) not requesting the trial court to issue a more complete
charge on the law in response to the jury's request; 4)
not objecting to the trial court's Allen charge, absent
any indication such charge was necessary; 5) not objecting to
the trial court's alleged improper admission of evidence
of the Petitioner's purchase and use of crack cocaine; 6)
not objecting to the Solicitor's alleged improper
bolstering of three state witnesses on direct examination; 7)
not objecting to the Solicitor's alleged improper
bolstering of another state witness (Cromwell) by the use of
his prior consistent statements; and 8) not presenting
favorable witnesses and evidence.
Court considered the first habeas petition on the merits,
found no meritorious issues warranting relief, and dismissed
it with prejudice. See Lemon v. Warden, No.
8:08-cv-1055-RBH-BHH (DE#35, Order of 03/19/09; DE#36,
Judgment). Grounds 1, 3, 4, 6, and 7 were dismissed as
procedurally defaulted, and Grounds 2, 5, and 8 were denied
on the merits. The Fourth Circuit Court of Appeals dismissed
the Petitioner's appeal on October 6, 2009.
(Id., DE#42, Opinion; DE# 43, Judgment; DE#44,
about August 31, 2018, Petitioner filed the present (second)
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. (DE# 1). Petitioner indicates he signed and
mailed it on August 16, 2018.