United States District Court, D. South Carolina, Florence Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
DISMISSING PETITIONER'S PETITION FOR WRIT OF HABEAS
CORPUS WITHOUT PREJUDICE AND WITHOUT REQUIRING RESPONDENT TO
FILE A RETURN
GEIGER LEWIS, UNITED STATES DISTRICT JUDGE.
case was filed as a Petition for Writ of Habeas Corpus
(Petition) under 28 U.S.C. § 2241. Petitioner Jamie Goss
(Goss) is proceeding pro se. The matter is before the Court
for review of the Report and Recommendation (Report) of the
United States Magistrate Judge suggesting Goss' Petition
be dismissed without prejudice and without requiring
Respondent to file a return. The Report was made in
accordance with 28 U.S.C. § 636 and Local Civil Rule
73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of
those portions of the Report to which specific objection is
made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. §
document filed pro se is ‘to be liberally
construed.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). Courts are not, however, required to
“conjure up questions never squarely presented to
them” or seek out arguments for a party. Beaudett
v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Magistrate Judge filed the Report on February 6, 2019, ECF
No. 8, and the Clerk of Court entered Petitioner's
objections to the Report on February 25, 2019, ECF No. 10.
The Court has reviewed the objections, but holds them to be
without merit. Therefore, it will enter judgment accordingly.
Magistrate Judge suggests Goss' Petition is due to be
dismissed because it is a successive Petition for Writ of
Habeas Corpus and Goss has failed to seek authorization from
the Fourth Circuit Court of Appeals to file the instant
Petition. Goss raises three objections to the Report.
first advances though the instant Petition appears to be
barred as successive, the statutes of fraud and his claim of
actual innocence serve to overcome the procedural bar on
bringing the instant Petition. As a preliminary matter, the
Court believes Goss refers to fraud rather than the statute
of frauds. Regardless of which Goss means, however, he fails
to explain why fraud or the statute of frauds would overcome
the procedural bar to his instant Petition.
of actual innocence may serve to overcome an otherwise
procedurally barred habeas claim. Herrera v.
Collins, 506 U.S. 390, 404 (1993). The standard for
showing of actual innocence is, however, extremely high;
petitioner must show a “fundamental miscarriage of
justice . . . .” Id. Additionally,
[w]ithout any new evidence of innocence, even the existence
of a concededly meritorious constitutional violation is not
in itself sufficient to establish a miscarriage of justice
that would allow a habeas court to reach the merits of a
barred claim. However, if a petitioner . . . presents
evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is
also satisfied that the trial was free of nonharmless
constitutional error, the petitioner should be allowed to
pass through the gateway and argue the merits of his
Schlup v. Delo, 513 U.S. 298, 316 (1995). Goss
neglects to claim newly discovered evidence supports his
claim of actual innocence, and thus fails to meet the
standard to bring this successive Petition. For the above
reasons, the Court will overrule Goss' first objection to
next objects he did not know he needed to seek authorization
from the Fourth Circuit prior to filing the instant Petition.
Goss thus asks the Court to stay the instant proceeding until
he can seek such authorization. In making this argument, Goss
fails to show why a stay is appropriate here. Further, the
statutes governing Petitions for a Writ of Habeas Corpus
require petitioner to file for authorization to bring a
successive Petition before the Petition is filed, not after
filing the Petition. 28 U.S.C. § 2244(b)(3)(A).
Accordingly, the Court will overrule Goss' second
objection to the Report.
third objection to the Report, Goss states he “objects
to all other claims made by way . . . . of general
objection.” ECF No. 10 at 2. Because this objection
fails to constitute a specific objection to the Report, the
Court declines to review Goss' third objection.
thorough review of the Report and the record in this case
pursuant to the standard set forth above, the Court overrules
Goss' objections, adopts the Report, and incorporates it
herein. Therefore, it is the judgment of this Court Goss'
Petition is DISMISSED WITHOUT PREJUDICE and
without requiring Respondent to file a return.
extent Goss requests a certificate of appealability from this