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Johnson v. Warden, McCormick Correctional Institution

United States District Court, D. South Carolina, Florence Division

June 10, 2019

Tarone Devale Johnson, Petitioner,
v.
Warden, McCormick Correctional Institution, Respondent.

          ORDER AND OPINION

          RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.

         Before 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.

         I. Background

         On 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 objections.

         II. Legal Standard

         A. Pro Se Pleadings

         This 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).

         B. Report and Recommendation

         The 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.

         III. Discussion

         Petitioner 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.

         IV. Conclusion

         For the foregoing reasons, the Court ADOPTS the Report and Recommendation of the Magistrate Judge (Dkt. No. 11) and DISMISSES the Petition.

         Certificate ...


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