United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge
is proceeding pro se. Petitioner brings this action
pursuant to 28 U.S.C. § 2254 for habeas relief. Pursuant
to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local
Rule 73.02(B)(2)(c), D.S.C., the undersigned is authorized to
review such petitions for relief and submit findings and
recommendations to the District Court. The Petition is
subject to dismissal because it is successive and presented
without an order from the Fourth Circuit Court of Appeals
authorizing this Court to consider a successive petition.
established local procedure in this judicial district, a
careful review has been made of the pro se pleadings
and motion to proceed in forma pauperis pursuant to
the procedural provisions of 28 U.S.C. § 1915 and the
Anti-Terrorism and Effective Death Penalty Act of 1996. The
review has been conducted 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, Maryland House of Correction, 64 F.3d 951 (4th
Cir. 1995)(en banc); Todd v. Baskerville,
712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582
F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro
se litigant, and thus his pleadings are accorded liberal
construction. Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam); Cruz v. Beto, 405 U.S.
319 (1972). Even under this less stringent standard, the
petition 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 currently cognizable in a federal district
court. Weller v. Department of Social Services, 901
F.2d 387, 390-91 (4th Cir. 1990).
this court is charged with screening Petitioner's lawsuit
to determine if “it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court.” Rule 4 of Rules
Governing Section 2254 Cases in the United States District
Courts. Following the required initial review, it is
recommended that the Petition submitted in this case should
be summarily dismissed due to being successive.
respect to his convictions and sentences, the
Petitioner's sole federal remedies are a writ of habeas
corpus under either 28 U.S.C. § 2254 or 28 U.S.C. §
2241, which remedies can be sought only after the Petitioner
has exhausted his state court remedies. “It is the rule
in this country that assertions of error in criminal
proceedings must first be raised in state court in order to
form the basis for relief in habeas. Claims not so raised are
considered defaulted.” Beard v. Green, 523
U.S. 371, 375 (1998) (citing Wainwright v. Sykes,
433 U.S. 72 (1977)); see also 28 U.S.C. §
2254(b); Braden v. 30th Judicial Circuit Court, 410
U.S. 484, 490-91 (1973); Picard v. Connor, 404 U.S.
recommended that the Petition be summarily dismissed as it is
barred as successive.
has filed a previous § 2254 petition in this Court
challenging the same three convictions challenged herein:
kidnapping, criminal sexual conduct with a minor, first
degree, and contributing to the delinquency of a minor,
convicted and sentenced on March 2, 1999. This Court may take
judicial notice of the filings in Petitioner's prior
§ 2254 case (4:05-cv-03335-HMH), including the order
granting summary judgment to the respondent on July 20, 2006.
See Slaughter v. Wright, 135 F.2d 613, 615 (4th Cir.
1943). The Fourth Circuit Court of Appeals affirmed in 2007.
The instant Petition is therefore successive, and is subject
to summary dismissal.
standard for determining whether a petition is successive
appears in Slack v. McDaniel, 529 U.S. 473, 485-89
(2000). A successive habeas petition cannot be filed without
first obtaining pre-filing authorization from the court of
appeals. 28 U.S.C. 2244(b)(3)(A); In re Williams,
444 F.3d 233, 235 (4th Cir. 2006). To be considered
successive, the second habeas petition must be the second
attack of the same conviction and the first habeas petition
must have been finally adjudicated on the merits. See
Williams, 444 F.3d at 236. A summary judgment grant in
favor of respondent is considered an adjudication on the
merits. See White v. U.S., 53 F.Supp.3d 830, 834
(D.S.C. 2014); Harvey v. Horan, 278 F.3d 370 (4th
Cir.2002) (abrogated on other grounds, Skinner v.
Switzer, 562 U.S. 521 (2011)). Because the instant
Petition is the second attack of the same conviction and the
first petition's adjudication is considered to be on the
merits, the instant Petition is successive. Therefore, since
Petitioner did not first obtain permission from the Fourth
Circuit Court of Appeals to file this successive § 2254
Petition, this court does not have jurisdiction over
Petitioner's instant Petition, and thus, the Petition is
subject to summary dismissal.
it is recommended that the § 2254 Petition in this case
be dismissed with prejudice and without
requiring the respondent to file a return, as successive