United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE
Dawson (“Petitioner”), a state prisoner
proceeding pro se, initiated this action by filing a Petition
for Writ of Habeas Corpus under 28 U.S.C. §
2254. Petitioner files this action in forma
pauperis under 28 U.S.C. § 1915. Pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil
Rule 73.02, D.S.C., the undersigned Magistrate Judge is
authorized to review such petitions for relief and to submit
findings and recommendations to the District Court. The
Petition is successive and should be summarily dismissed
established local procedure in this judicial district, a
careful review has been made of the pro se petition filed in
the above-captioned case. The review was conducted pursuant
to the procedural provisions of 28 U.S.C. § 1915, the
Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”) of 1996, 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); Nasim v. Warden, Md.
House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v.
Baskerville, 712 F.2d 70 (4th Cir. 1983). This Court is
charged with screening Petitioner's lawsuit to determine
if “it plainly appears from the petition and any
attached exhibits that Petitioner is not entitled to relief
in the district court.” Rule 4, Rules Governing Section
2254 Cases in the U.S. District Courts (2012). Because
Petitioner is a pro se litigant, his 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 in this case 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 Cir. 1990).
is currently incarcerated at the Broad River Correctional
Institution in the South Carolina Department of Corrections
and is serving two consecutive 25-year sentences for his
conviction of two counts of armed robbery. Petitioner was
sentenced by the Darlington County General Sessions Court on
February 7, 1990.
28 U.S.C. § 2254 is the appropriate vehicle for a state
prisoner to challenge a state conviction, relief under the
statute is unavailable to the Petitioner because the instant
petition is successive. This is the fifth § 2254
petition that Petitioner has submitted to this Court in his
efforts to challenge the constitutionality of his state court
criminal convictions. While Petitioner requested an extension
of time in this case to seek permission from the Fourth
Circuit Court of Appeals to bring this successive habeas
petition [Doc. 15], he does not indicate anywhere that he has
obtained permission from the United States Court of Appeals
for the Fourth Circuit before filing this fourth § 2254
March 22, 2000, Petitioner filed his first petition in this
Court for relief under 28 U.S.C. § 2254, which was
dismissed with prejudice on October 2, 2000. See Dawson
v. Catoe, No. 2:00-cv-900-JFA, Doc. 10 (D.S.C. 2000). On
July 3, 2003, Petitioner filed his second petition in this
Court for relief under 28 U.S.C. § 2254, which was
dismissed as successive on August 25, 2003. See Dawson v.
Burtt, 2:03-cv-2206-JFA, Doc. 7 (D.S.C. 2003). On March
8, 2007, Petitioner filed his third petition in this Court
for relief under 28 U.S.C. § 2254, which was also
dismissed as successive on June 19, 2007. See Dawson v.
Burtt, 2:07-cv-0669-JFA, Doc. 28 (D.S.C. 2007). In
October 2017, Petitioner filed his fourth petition in this
Court for relief under 28 U.S.C. § 2254, which was also
dismissed as successive on March 19, 2018. See Dawson v.
Burtt, 4:17-cv-2699-JFA, Doc. 26 (D.S.C. 2018).
fifth habeas petition is successive, and Petitioner has
failed to obtain authorization from the Fourth Circuit to
file a successive petition. On April 24, 1996, the
Anti-Terrorism and Effective Death Penalty Act of 1996 (the
“AEDPA”) amended 28 U.S.C. § 2254 and other
The AEDPA effected a number of substantial changes regarding
the availability of federal postconviction relief to
individuals convicted of crimes in federal and state courts.
Of particular importance here are the provisions of the AEDPA
codifying and extending judicially constructed limits on the
consideration of second and successive applications for
collateral relief. See Felker v. Turpin, 518 U.S.
651 . . . (1996). Under the AEDPA, an individual may not file
a second or successive § 2254 petition for a writ of
habeas corpus or § 2255 motion to vacate sentence
without first receiving permission to do so from the
appropriate circuit court of appeals.
In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)
(footnote omitted). The “gatekeeping” mechanism
created by the AEDPA amended § 2244(b) to provide:
The prospective applicant must file in the court of appeals a
motion for leave to file a second or successive habeas
application in the district court. § 2244(b)(3)(A). A
three-judge panel has 30 days to determine whether “the
application makes a prima facie showing that the application
satisfies the requirements of” § 2244(b). §
2244(b)(3)(c); see §§ 2244(b)(3)(B), (D).
Felker, 518 U.S. at 657.
action qualifies as a second or successive § 2254 action
because Petitioner's first § 2254 action filed in
this Court in 2000, pertaining to the same conviction for
which he is serving his sentence, was decided on the merits.
See Dawson v. Catoe, No. 2:00-cv-900-JFA, Doc. 10
(D.S.C. Oct. 3, 2000). To be considered “successive,
” the second or subsequent petition must be an attack
on the same conviction attacked in the first petition, and
the first petition must have been adjudicated on the merits.
See In reWilliams, 444 F.3d 233, 236 (4th
Cir. 2006). Here, the initial ...