United States District Court, D. South Carolina
Honorable Bruce Howe Hendricks United States District Judge.
matter is before the Court upon Petitioner Jeffery
Jeter's pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In accordance with 28
U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(d) (D.S.C.), the matter was referred to a United
States Magistrate Judge for initial review.
November 2, 2018, Magistrate Judge Kevin F. McDonald filed a
Report and Recommendation (“Report”), outlining
the issues and recommending that the Court dismiss the
instant petition because it is a successive petition and
because Petitioner has not received pre-filing authorization
from the Fourth Circuit Court of Appeals to file the
petition. See 18 U.S.C. § 2244(b)(3).
the Report was a notice advising Petitioner of his right to
file written, specific objections to the Report within
fourteen days of receiving a copy. Petitioner filed
objections on November 16, 2018, and the matter is ripe for
Magistrate Judge makes only a recommendation to the Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of
any portion of the Report to which a specific objection is
made. The Court may accept, reject, or modify, in whole or in
part, the recommendation made by the Magistrate Judge or
recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b).
to 28 U.S.C. § 2254, “[a] claim presented in a
second or successive habeas corpus application under section
2254 that was not presented in a prior application shall be
dismissed” unless an exception applies. See 28
U.S.C. § 2244(b)(2); see also Rule 9, Rules
Governing Section 2254 and 2255 Cases (“Before
presenting a second or successive petition, the petitioner
must obtain an order from the appropriate court of appeals
authorizing the district court to consider the petition as
required by 28 U.S.C. § 2244(b)(3) and (4).”).
“AEDPA does not define ‘second or
successive.'” United States v.
Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir.2000).
“[I]t is well settled that the phrase [‘second or
successive'] does not simply refer to all § 2254
applications filed second or successively in time.”
Magwood v. Patterson, 561 U.S. 320, 332 (2010)
(internal quotation marks and citations omitted). “In
order to qualify as a successive petition, the dismissal of
the first habeas petition must be on the merits.”
Harvey v. Horan, 278 F.3d 370, 379 (4th Cir. 2002),
abrogated on other grounds by Skinner v. Switzer,
131 S.Ct. 1289 (2011) (citing Slack v. McDaniel, 529
U.S. 473, 485-89 (2000)).
as the Magistrate Judge explained in his Report, Petitioner
previously filed a habeas corpus action pursuant to 28 U.S.C.
§ 2254 in 2014, seeking to overturn the same state court
convictions he challenges in the instant petition. See
Jeter v. Cartledge, No. 6:14-3658-BHH (D.S.C. 2015). In
the prior case, the Court issued an order on September 18,
2015, adopting the Magistrate Judge's Report and granting
Respondent's motion for summary judgment. Thus, the Court
decided Petitioner's previous § 2254 petition on the
merits, and the instant petition is therefore successive.
See Epps v. McCall, No. 1:13-cv-873-RMG, 2013 WL
2897016, at *1 (D.S.C. June 13, 2013) (“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.” (citing In re
Williams, 444 F.3d 233, 236 (4th Cir.2006)).
petitioner has previously litigated a § 2254 petition,
he or she must, “[b]efore a second or successive
application permitted by this section is filed in the
district court, . . . move in the appropriate court of
appeals for an order authorizing the district court to
consider the application.” 28 U.S.C. §
2244(b)(3)(A); see also Gonzalez v. Crosby, 545 U.S.
524, 530 (2005) (“[B]efore the district court may
accept a successive petition for filing, the court of appeals
must determine that it presents a claim not previously raised
that is sufficient to meet § 2244(b)(2)'s new-rule
or actual-innocence provisions.” (citing 28 U.S.C.
Petitioner has not shown that he has obtained permission from
the United States Court of Appeals for the Fourth Circuit to
file a successive petition, and thus, the Court agrees with
the Magistrate Judge that Petitioner's unauthorized,
successive petition must be dismissed. See Burton,
549 U.S. at 153 (holding that failure of petitioner to obtain
authorization to file a “second or successive”
petition deprived the district court of jurisdiction to
consider the second or successive petition).
addition, the Court finds that Petitioner's objections do
not alter this conclusion. Stated simply, nowhere in his
objections does Petitioner explain why the instant §
2254 petition is not successive to his prior § 2254
petition, which was decided on the merits; nor does
Petitioner contend that he has received pre-filing
authorization from the Fourth Circuit to file the instant
petition. Instead, Petitioner asserts that “this §
2254 is based on the highest state court denying a motion
under 60(b), ” and he asserts that he filed the §
2254 motion “to receive due process and a fair hearing
into the contents of the 60(b).” (ECF No. 13 at 2-3.)
Ultimately, the Court finds these objections wholly without
merit and agrees with the Magistrate Judge that the instant
§ 2254 petition is successive. Moreover, because it does
not appear that Petitioner has obtained the necessary
pre-filing authorization from the Fourth Circuit to file this
petition, the Court finds that it lacks jurisdiction to
the Court hereby adopts and incorporates the Magistrate
Judge's Report (ECF No. 11); overrules Petitioner's
objections (ECF No. 13); and dismisses this ...