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McKanic v. Lewis

United States District Court, D. South Carolina

March 29, 2019

Elson McKanic, Petitioner,
v.
Warden Lewis, Respondent.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE.

         The petitioner, Elson McKanic, a self-represented state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner files this action pursuant to 28 U.S.C. § 1915A. This Petition is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.). Having reviewed the Petition in accordance with applicable law, the court concludes that it should be summarily dismissed without prejudice and without requiring the respondent to file a return because it is impermissibly successive.

         I. Factual and Procedural Background

         Petitioner indicates he was convicted in the Union County Court of General Sessions of assault and battery of a high and aggravated nature and sentenced to life imprisonment without the possibility of parole on September 24, 1991. (Pet., ECF No. 1 at 1.) After exhausting his state court remedies to collaterally review his conviction, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court in 2004. McKanic v. Bazzle, C/A No. 9:04-cv-1835-HMH. The court dismissed the 2004 petition on summary judgment, finding that the petition was not timely filed. Subsequently, Petitioner filed two more § 2254 petitions that were dismissed as successive. McKanic v. Ozmint, C/A No. 9:06-cv-1598-HMH; McKanic v. Ozmint, C/A No. 9:07- cv-800-HMH. Petitioner now seeks another petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming the Union County Court of General Sessions lacked subject matter jurisdiction because the prosecutor failed to provide him with notice that the State would seek life without parole pursuant to S.C. Code § 17-25-45(H).

         II. Discussion

         A. Standard of Review

         Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case pursuant to the Rules Governing § 2254 Cases, 28 U.S.C. § 2254; the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 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) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).

         This court is required to liberally construe pro se petitions, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).

         B. Analysis

         The instant case should be summarily dismissed as a successive § 2254 petition. “[A]n 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); see also 28 U.S.C. § 2244(b). The issue of successiveness of a habeas petition may be raised by the court sua sponte. See Rodriguez v. Johnson, 104 F.3d 694, 697 n.1 (5th Cir. 1997); Davis v. McFadden, C/A No. 0:14-2662-RMG, 2014 WL 5305931, at *4 (D.S.C. Oct. 15, 2014) (adopting and incorporating Report and Recommendation). A petition is only second or successive if the original petition was adjudicated on the merits. See 28 U.S.C. § 2244(b). A finding that the petition is untimely is a decision on the merits that triggers § 2244's requirement that successive petitions only be filed with permission of a circuit court of appeals. See In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) (collecting cases).

         Thus, Petitioner must obtain a Pre-Filing Authorization from the United States Court of Appeals for the Fourth Circuit before this court may consider a second or successive § 2254 petition. See 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.”); see also In re Williams, 330 F.3d 277 (4th Cir. 2003). As Petitioner provides no indication that he received such permission from the Fourth Circuit prior to filing this Petition, it is subject to summary dismissal. Petitioner can obtain the forms necessary to seek authorization to file a second or successive habeas petition from the Clerk's Office of the Fourth Circuit Court of Appeals.

         III. Conclusion

         Accordingly, the court recommends that the Petition for a writ of habeas corpus be dismissed without prejudice and without requiring the respondent to file a return.

         The parties are directed to note the important ...


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