United States District Court, D. South Carolina, Greenville Division
TIMOTHY M. CAIN UNITED STATES DISTRICT JUDGE
Robert Graham, Jr., a state prisoner proceeding pro
se, filed this action pursuant to 28 U.S.C. § 2254.
(ECF Nos. 1, 1-2). In accordance with 28 U.S.C. § 636(b)
and Local Civil Rule 73.02 (B)(2)(c), D.S.C., this matter was
referred to a magistrate judge for pretrial handling. On
November 2, 2018, the magistrate judge issued a Report and
Recommendation (the “Report”), recommending that
this § 2254 petition be summarily dismissed as
successive, without prejudice and without requiring a return
from the Respondent. (ECF No. 15 at 1, 4). Petitioner timely
filed objections. (ECF No. 17).
is a state prisoner serving a life sentence without parole
imposed on November 7, 1997, in the Florence County Court of
General Sessions. (ECF No. 1-2 at 1). The magistrate judge
took judicial notice that Petitioner has filed multiple
habeas petitions challenging the same life sentence that is
now at issue in the current action. (ECF No. 15 at 1). On
February 17, 2010, Petitioner filed his first § 2254
petition seeking relief from his 1997 life sentence. (ECF No.
15 at 1-2); see Graham v. McCall, C/A No.
6:10-cv-00376-MBS, 2011 WL 649698 (D.S.C. Feb. 11, 2011)
(“McCall I”). The court dismissed the
McCall I petition with prejudice as time-barred
under 28 U.S.C. 2244(d)(1(D). See McCall I, 2011 WL
649698 at *3-4.
March 16, 2011, Petitioner filed a “Notice and Motion
to Set Aside Judgment” on the 1997 convictions and
sentences. (ECF No. 15 at 2). See Graham v. South
Carolina, C/A No. 6:11-00595-MBS, 2012 WL 527606 (D.S.C.
Feb. 16, 2012) (“Graham I”). The court
construed Petitioner's action as a § 2254 petition
and ordered Petitioner to “to bring his action into
proper form” or risk having his case dismissed pursuant
to Rule 41 of the Federal Rules of Civil Procedure for
failure to comply with an order of the court. See Graham
I, 2012 WL 527606 at *3. When he failed to do so, the
court dismissed the action without prejudice. (ECF No. 15 at
25, 2012, filed a third § 2254 petition seeking relief
from the same sentence. (ECF No. 15 at 2). The court
concluded that the petition was successive and dismissed it
for Petitioner's failure to secure permission from the
Fourth Circuit Court of Appeals to file a second or
successive petition pursuant to 28 U.S.C. § 2244(b)(3).
See Graham v. McCall, C/A No. 6:12-cv-1381-CMC-KFM,
2012 WL 2891108, at *1 (D.S.C. July 16, 2012)
September 20, 2012, Petitioner filed a petition under 28
U.S.C. § 2241 seeking relief from the same sentence he
challenges in the instant petition. (ECF No. 15 at 2).
See Graham v. State Atty. Gen., No. C/A No.
6:12-2699-CMC-KFM, 2012 WL 6633915, at *1 (D.S.C. Dec. 20,
2012) (“Graham II”). The court
construed the petition as a successive § 2254 petition
and dismissed it without prejudice because Petitioner once
again had failed to secure permission from the Fourth Circuit
Court of Appeals to file a second or successive petition
pursuant to § 2244(b)(3). See Graham II, 2012
WL 6633915, at *1.
on October 9, 2018, Petitioner filed the instant petition
pursuant to § 2254, challenging the same November 7,
1997 life sentence he has challenged in multiple § 2254
petitions. (ECF No. 1-2 at 1). Specifically, Petitioner raises
two claims asserting that his sentence was imposed in
violation of the Thirteenth Amendment (ECF No. 1-2 at 5-7);
one claim asserting that the sentencing court impermissibly
relied upon prior convictions in imposing his life sentence,
id. at 8-9; and two claims that the sentencing court
had no authority to impose his sentence because the proper
notices were not filed, id. at 9-10.
Report, the magistrate judge determined that the instant
petition is successive in nature because Petitioner's
initial habeas petition in McCall I challenging the
life sentence was dismissed as time-barred and, therefore,
decided on the merits. Id. at 2, 4. As a result, the
magistrate judge concluded that Petitioner was required to
obtain authorization from the Fourth Circuit Court of Appeals
before filing the instant petition. Id. at 4. Since
Petitioner has not done so, the magistrate judge recommended
that the court dismiss this petition without prejudice and
without requiring Respondent to file a return. Id.
at 1, 4.
magistrate judge makes only a recommendation to this 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 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 to the magistrate
judge with instructions. See 28 U.S.C. §
636(b)(1). However, the court need not conduct a de novo
review when a party makes only “general and conclusory
objections that do not direct the court to a specific error
in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of a timely filed,
specific objection, the magistrate judge's conclusions
are reviewed only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
Petitioner has filed this Petition pro se, this
court is charged with construing the Petition liberally in
order to allow for the development of a potentially
meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9
(1980) (internal citations omitted); Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). However,
this does not mean that the court can ignore the
Petitioner's failure to allege facts that set forth a
claim currently cognizable in a federal district court.
See Weller v. Dep't of Soc. Servs., 901 F.2d
387, 391 (4th Cir. 1990).
magistrate judge did, this court takes judicial notice of the
previous ruling in McCall I in which the court
dismissed Petitioner's prior habeas petition challenging
the same sentence he challenges in the instant action as
time-barred under § 2244(d)(1)(D). See McCall
I, 2011 WL 649698, at *3-4. The dismissal of a §
2254 petition as untimely “constitutes an adjudication
on the merits that renders future petitions under § 2254
challenging the same conviction ‘second or
successive' petitions under § 2244(b).”
Quezada v. Smith, 624 F .3d 514, 519-20 (2d
Cir.2010) (internal quotation marks omitted); McNabb v.
Yates, 576 F.3d 1028, 1029 (9th Cir. 2009). Thus, this
court does not have jurisdiction to review the matters set
forth in the current petition until authorized to do so by
the United States Court of Appeals for the Fourth Circuit.
See § 2244(b)(3)(A).
objections to the Report (ECF No. 17), Petitioner amplifies
and adds to the grounds raised in his petition for
challenging the legality of his sentence, claiming (1) that
his sentence is void as the solicitor failed to serve notice
of intent to seek a life sentence, id. at 1; (2)
that the court “has territorial authority” to
grant relief from a void sentence, id. at 2-3; (3)
that summary dismissal of this petition would violate
Petitioner's due process rights where Petitioner has been
detained for more than thirteen years above the statutory
maximum sentence, id. at 4; (4) that his unlawful
confinement violates the Thirteenth Amendment and it is
therefore within the power of the court to vacate his
sentence, id. at 5; (5) that the court has the power
to consider whether Petitioner was actually and factually
innocent of the basis for his enhanced sentence, id.
at 6; and (6) that it would be unfairly prejudicial for the
court to summarily dismiss his claims because he is a pro
se litigant, id. at 7. Petitioner, however,
does not challenge the magistrate judge's determination
that his petition is successive or that he has failed to seek
authorization from the Fourth Circuit Court of Appeals to
file the instant petition. (ECF No. 15 at 4). And, to the
extent that Petitioner's objections can be construed as
contesting the constitutional validity of the ...