United States District Court, D. South Carolina, Charleston Division
Bryan Harwell United States District Judge
Curtis Jerome Lemon, a state prisoner proceeding pro se,
initiated this action by filing a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. See
ECF No. 1. The matter is before the Court for review of
Petitioner's objections to the Report and Recommendation
(“R & R”) of United States Magistrate Judge
Mary Gordon Baker, who recommends summarily dismissing
Petitioner's § 2254 petition as successive and
denying a certificate of appealability. See ECF
Nos. 8 & 13.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b).
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
previously filed a § 2254 petition, which this Court
considered on the merits and dismissed with prejudice.
See Lemon v. Warden, No. 8:08-cv-01055-RBH, at ECF
Nos. 1 & 35 (D.S.C.) (“Lemon I”);
available at, 2009 WL 764418 (D.S.C. Mar. 19, 2009),
appeal dismissed, 339 Fed.Appx. 298 (4th Cir. 2009),
cert. denied, 559 U.S. 981 (2010). Petitioner has
now filed a second § 2254 petition challenging the same
convictions that were the subject of his first § 2254
petition. Compare ECF No. 1, with Lemon I
at ECF No. 1. The Magistrate Judge recommends dismissing the
instant petition as successive, noting there is no indication
that Petitioner obtained pre-filing authorization from the
United States Court of Appeals for the Fourth Circuit before
filing it. See R & R at pp. 5-8. Petitioner has
filed objections to the R & R. See ECF No. 13.
Court agrees with the Magistrate Judge that Petitioner's
instant § 2254 petition is successive and must be
dismissed. This Court decided Petitioner's first §
2254 petition on the merits. See Bryant I, 2012 WL
3597652 (granting the respondent's motion for summary
judgment and dismissing the petition). Consequently, the
petition currently before the Court is
successive. See Slack v. McDaniel, 529 U.S.
473, 485-89 (2000) (defining a successive petition as one
filed after an initial petition was decided on its merits);
see generally Shoup v. Bell & Howell Co., 872
F.2d 1178, 1181 (4th Cir. 1989) (“A summary judgment
dismissal is a final adjudication on the merits . .
. .”); see, e.g., Washington v.
Cartledge, No. 4:16-cv-00017-PMD-TER, 2016 WL 1444620,
at *2 (D.S.C. Mar. 9, 2016) (“[T]he previous petition
was dismissed with prejudice as summary judgment on the
merits was entered in favor of respondent. Accordingly, the
instant [p]etition is successive.”), adopted
by, 2016 WL 1427359 (D.S.C. Apr. 12, 2016).
there is no evidence showing Petitioner obtained pre-filing
authorization from the Fourth Circuit to file a successive
petition. See 28 U.S.C. § 2244(b)(3)(A)
(“Before a second or successive application permitted
by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order
authorizing the district court to consider the
application.”); Easter v. Johnson, 107
Fed.Appx. 348, 349 (4th Cir. 2004) (“In the absence of
pre-filing authorization, the district court is without
jurisdiction to entertain the successive petition.”).
Consequently, the Court lacks jurisdiction over
Petitioner's current § 2254 petition and must
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rule 11(a) of the Rules Governing Section
2254 Cases. A certificate of appealability will not issue
absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
When the district court denies relief on the merits, a
petitioner satisfies this standard by demonstrating that
reasonable jurists would find that the court's assessment
of the constitutional claims is debatable or wrong. Slack
v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El
v. Cockrell, 537 U.S. 322, 336-38 (2003). When the
district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the petition states
a debatable claim of the denial of a constitutional right.
Slack, 529 U.S. at 484-85. In this case, the Court
concludes that Petitioner has failed to make the requisite
showing of “the denial of a constitutional
foregoing reasons, the Court overrules Petitioner's
objections and adopts and incorporates by reference the
Magistrate Judge's R & R [ECF No. 8]. Accordingly,
the Court DISMISSES Petitioner's §
2254 petition without prejudice and without
requiring Respondent to file an answer or return. The Court
DENIES a certificate of appealability
because Petitioner has not made “a substantial showing
of the denial of a constitutional right” under 28
U.S.C. § 2253(c)(2).