United States District Court, D. South Carolina, Florence Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 11) recommending
that the Petition for habeas relief be dismissed. For the
reasons set forth below, the Court adopts the R & R as
the order of the Court and dismisses the Petition.
September 3, 1999, Petitioner was convicted of murder and
given a sentence of life incarceration. The South Carolina
Court of Appeals affirmed the conviction, and the South
Carolina Supreme Court denied certiorari. Petitioner's
PCR was denied. On January 16, 2009, Petitioner filed a
Petition under 28 U.S.C. § 2254, which was dismissed
with prejudice as untimely. The Fourth Circuit dismissed the
appeal. See Johnson v. State of South Carolina et
al, Civil Action No. 4:09-cv-156-GRA. In this action,
Petitioner filed a Petition for Habeas Corpus under 28 U.S.C.
§ 2254. On May 15, 2019, the Magistrate Judge
recommended dismissing the petition as an unauthorized
successive petition. (Dkt. No. 11.) Petitioner did not file
Pro Se Pleadings
Court liberally construes complaints filed by pro se
litigants to allow the development of a potentially
meritorious case. See Cruz v. Beto, 405 U.S. 319
(1972); Haines v. Kerner, 404 U.S. 519 (1972). The
requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege
facts which set forth a viable federal claim, nor can the
Court assume the existence of a genuine issue of material
fact where none exists. See Weller v. Dep't of Social
Services, 901 F.2d 387 (4th Cir. 1990).
Report and Recommendation
Magistrate Judge makes only a recommendation to this Court
that has no presumptive weight. The responsibility to make a
final determination remains with the Court. See Mathews
v. Weber, 423 U.S. 261, 270-71 (1976). The Court may
"accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1). This Court is
charged with making a de novo determination of those
portions of the R & R to which specific objection is
made. Fed.R.Civ.P. 72(b)(2). Where the plaintiff fails to
file any specific objections, "a district court need not
conduct a de novo review, but instead must only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation."
Diamond v. Colonial Life & Accident Ins. Co.,
416 F.3d 310, 315 (4th Cir. 2005) (internal quotation
omitted). Petitioner did not file objections, and the R &
R is reviewed for clear error.
seeks to challenge his conviction entered in Charleston
County. However, based on his previously dismissed Petition
for habeas relief, this is his second successive petition. A
successive Petition requires authorization from the
appropriate court of appeals prior to being filed in the
district court. 28 U.S.C. § 2244(b)(3). The dismissal of
Petitioner's first Petition as time barred is a judgment
on the merits for purposes of determining whether a petition
is successive. See Joseph v. McKie, No.
8:14-CV-4100-RMG, 2014 WL 7369571, at *4 (D.S.C. Dec. 29,
2014) citing Henderson v. Bazzle, No. CIV.A.
9:08-0978-MBS, 2008 WL 1908535, at *3 (D.S.C. Apr. 29, 2008).
As this Petition is Petitioner's second attacking his
same conviction, this Petition is successive. Therefore, as
the Petitioner has not obtained authorization from the Fourth
Circuit to file a successive petition, the Petition is
subject to dismissal.
foregoing reasons, the Court ADOPTS the
Report and Recommendation of the Magistrate Judge (Dkt. No.
11) and DISMISSES the