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Dogan v. Tucker

United States District Court, D. South Carolina

January 8, 2019

Eddie Dean Dogan, Jr., #256596, Petitioner,
v.
Warden Barry Tucker, Respondent.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge

         Petitioner 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.

         DISCUSSION

         Under 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).

         Furthermore, 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.

         With 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. 270 (1971).

         It is recommended that the Petition be summarily dismissed as it is barred as successive.

         Petitioner 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.

         The 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.[1]

         RECOMMENDATION

         Accordingly, 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 and unauthorized.

         IT IS SO ORDERED.

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