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Lemon v. Warden of MacDougall Correctional Institution

United States District Court, D. South Carolina, Charleston Division

September 4, 2018

Curtis Jerome Lemon, #256984, Petitioner,
v.
Warden of MacDougall Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

         Curtis 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:

         I. Pro Se Habeas Review

         Under 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).

         Pro 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).

         II. Background

         The 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).

         In 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[1] 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.

         On 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.

         Petitioner 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.

         On or 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.

         This 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, Mandate).

         On or 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.

         III. ...


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