United States District Court, D. South Carolina, Florence Division
Gary L. Grant, Petitioner,
Warden, Kershaw Correctional Institution, Respondent.
Timothy M. Cain United States District Judge.
Gary Grant, a state prisoner proceeding pro se,
filed this action pursuant to 28 U.S.C. § 2254. Pursuant
to 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2)(c) (D.S.C.), this case was referred to a
magistrate judge for pretrial handling. Before the court is
the magistrate judge's Report and Recommendation
(“Report”), recommending that this court dismiss
the Petition for Writ of Habeas Corpus (ECF No. 1) because it
is successive. (ECF No. 10). The magistrate judge notified
Petitioner of his right to file objections to the Report (ECF
No. 10 at 5), and Petitioner filed timely objections (ECF No.
recommendations set forth in the Report have no presumptive
weight, and this court remains responsible for making a final
determination in this matter. See Mathews v. Weber,
423 U.S. 261, 270-71 (1976). The court is charged with making
a de novo determination of those portions of the
Report to which a specific objection is made, and the court
may accept, reject, 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). However, the
court need not conduct a de novo review when a party
makes only “general and conclusory objections that do
not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of a timely filed,
specific objection, the magistrate judge's conclusions
are reviewed only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
Petitioner has filed this Petition pro se, this
court is charged with construing the Petition liberally in
order to allow for the development of a potentially
meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9
(1980) (internal citations omitted); Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). However,
this does not mean that the court can ignore the
Petitioner's failure to allege facts that set forth a
claim currently cognizable in a federal district court.
See Weller v. Dep't of Soc. Servs., 901 F.2d
387, 391 (4th Cir. 1990).
Report, the magistrate judge noted that Petitioner filed a
previous § 2254 petition challenging the same conviction
and sentence that are now at issue in the current Petition.
(ECF No. 10 at 2-3). As the magistrate judge did, the court
takes judicial notice of the ruling in Petitioner's
previous case pertaining to a previous § 2254 petition,
in which the undersigned granted summary judgment for the
respondent and dismissed the habeas petition. Grant v.
Warden of Lee Corr. Inst., No. 4:16-cv-00540-TMC, 2017
WL 372107 (D.S.C. Jan. 26, 2017). Accordingly, the
undersigned is without jurisdiction to rule on the merits of
the Petition. See 28 U.S.C. § 2244(b)(1);
Burton v. Stewart, 549 U.S. 147, 153 (2007)
(discussing habeas procedure regarding second or successive
in his objections to the Report, Petitioner specifically
states that “[t]his court should dismiss
Petitioner['s] active Petition for a Writ of Habeas
Corpus and allow him to file his notice of appeal and writ of
certiorari in the proper jurisdiction.” (ECF No. 12 at
3). Furthermore, Petitioner now states that he wishes to seek
authorization “from the Court of Appeals” to file
a second petition. Id. Accordingly, it does not
appear that Petitioner challenges the magistrate judge's
determination that this court is without jurisdiction to rule
on this successive habeas petition.
careful and thorough review of the record under the
appropriate standards, as set forth above, the court adopts
the Report (ECF No. 10). Accordingly, the Petition (ECF No.
1) is DISMISSED without prejudice and without
requiring Respondent to file a return.
certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). A prisoner
satisfies this standard by demonstrating that reasonable
jurists would find both that this constitutional claims are
debatable and that any dispositive procedural rulings by the
district court are also debatable or wrong. See Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003); Rose v.
Lee, 252 F.3d 676, 683 (4th Cir. 2001). In the instant
matter, the court finds that the petitioner failed to make a
“substantial showing of the denial of a constitutional
right.” Accordingly, the court declines to issue a
certificate of appealability.
IS SO ORDERED.
 Furthermore, to the extent that
Petitioner alleges that he did not intend to file a habeas
petition, but rather, sought to appeal an order of the South
Carolina Supreme Court, this court lacks jurisdiction to hear
a direct appeal from the state Supreme Court. It appears that
Petitioner relies on 28 U.S.C. § 1257 (A) as the basis
for jurisdiction for such appeal (ECF No. 13 at 2), which
does not give this court jurisdiction to hear such an appeal.
Accordingly, to the extent that Petitioner sought to file
this action as a direct appeal of an order of the South
Carolina Supreme Court and not as a habeas petition, it is
subject to dismissal for lack of jurisdiction.
 The court notes that after filing his
objections, Petitioner subsequently filed what he titled a
“Motion for Leave to File Pleadings in Proper
Jurisdiction” (ECF No. 13) and a
“Notification” that he had filed a grievance in
the South Carolina Supreme Court against the prosecuting
attorney from the case underlying his convictions at issue in
the instant Petition (ECF No. 18). Petitioner does not need
an order from this court to seek authorization from the
Fourth Circuit Court of Appeals to file a second petition for
habeas corpus. See 28 U.S.C. § 2244 (b)(3)(A).