United States District Court, D. South Carolina
James A. McClellan, a/k/a James Anderson McClellan, Petitioner,
South Carolina Department of Corrections, Warden of Perry Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE.
James Anderson McClellan, a state prisoner at the Perry
Correctional Institution, part of the South Carolina
Department of Corrections, filed this Petition for Writ of
Habeas Corpus pro se and in forma pauperis, pursuant
to 28 U.S.C. § 2254. In this Petition, Petitioner states
that he is challenging his convictions and sentences for
first-degree burglary and kidnapping. Petition, ECF No. 1 at
established local procedure in this judicial district, a
careful review has been made of the pro se petition filed in
the above-captioned case pursuant to the procedural
provisions of the Anti-Terrorism and Effective Death Penalty
Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (AEDPA), 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); and Todd
v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se
petitions are also held to a less stringent standard than
those drafted by attorneys, and a federal district court is
charged with liberally construing a petition filed by a prose
litigant to allow for the development of a potentially
meritorious case. See Hushes v. Rowe, 449 U.S. 5, 9
(1980) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th
Cir. 1978) (citing Rice v. Olson, 324 U.S.
786.791-92 (1945): Holiday v. Johnston, 313
U.S. 342, 350(1941)).
this Court is charged with screening Petitioner's lawsuit
to determine if "it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court." Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts. 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 currently cognizable in
a federal district court. See Weller v. Dep't of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990). Such is the
February 14, 1990, Petitioner was convicted of first-degree
burglary (case number C555406, indictment number
1990-GS-42-00024) and kidnapping (case number C555407,
indictment number 1990-GS-42-00025) and sentenced to life
imprisonment. No direct appeal was filed. The one-year
limitations period under the anti-Terrorism and Effective
Death Penalty Act of 1996 (AEDPA) was effective on April 24,
1996. In Brown v. Aneelone, 150 F.3d 370 (4th Cir.
1998), the United States Court of Appeals for the Fourth
Circuit held that the one-year limitations period did not
apply retroactively. Therefore, persons whose convictions
became final prior to April 24, 1996, had until April 23,
1997, to file timely habeas petitions. Petitioner filed four
applications for post-conviction relief (PCR), all but one of
which were after April 23, 1997. His first PCR (case number
1994-CP-42-01174) was filed on June 15, 1994, and was
dismissed on March 19, 1995, prior to enactment of the AEDPA.
Petitioner's second PCR (case number 2001-CP-42-00830)
was filed on March 20, 2001, and was dismissed on October 1,
2003. A third PCR (case number 2001-CP-42-02189) was filed by
Petitioner on July 27, 2001, which was voluntarily dismissed
(Judge J. Derham Cole's Order indicating that petitioner
wished to withdraw his PCR application) on March 12, 2004. On
August 13, 2001, Petitioner filed his fourth PCR (case number
2001-CP-42-02352), which was dismissed as successive on March
12, 2004. See McClellan v. Cartedeg, No.
9:06-3057-PMD, 2009 WL 210922 (D.S.C. Jan. 28, 2009); see
also Spartanburg County Public Index,
22681051077056 (burglary); https://publicindex.
8785184119 (1 st PCR);
7557891149011256 (2nd PCR);
9828487118984876998899 (3rd PCR);
011016978756586121797690859769 (4th PCR).
filed a prior petition for writ of habeas corpus
(9:06-3057-PMD) pursuant to 28 U.S.C. § 2254 challenging
the same convictions and sentences challenged
here. The respondent filed a motion for summary
judgment as to the previous petition on November 17, 2008,
and a Roseboro Order was issued on November 19, 2008.
Petitioner did not file a response. On January 7, 2009, the
undersigned issued a Report and Recommendation which
recommended that the respondent's Motion for Summary
Judgment be granted. Although Petitioner was advised of his
right to file objections to the Report, he did not do so. On
January 28, 2009, the Honorable Patrick Michael Duffy, United
States District Judge, granted the respondent's motion
for summary judgment See McClellan v. Cartledge,
2009 WL 210922, at * 1.
the AEDPA, an individual may not file a second or successive
§ 2254 petition for a writ of habeas corpus or [a 28
U.S.C] § 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). The "gatekeeping" mechanism
created by the AEDPA amended § 2244(b) to provide:
The prospective applicant must file in the court of appeals a
motion for leave to file a second or successive habeas
application in the district court. § 2244(b)(3)(A). A
three-judge panel has 30 days to determine whether "the
application makes a prima facie showing that the application
satisfies the requirements of § 2244(b). §
2244(b)(3)(C); see §§ 2244(b)(3)(B), (D).
Felker v. Turpin, 2009 WL 210922, 657 (1996).
Therefore, since Petitioner's previous § 2254
petition (Civil Action No. 9:06-3057-PMD) was decided on the
merits,  the Petition filed in this action should
be summarily dismissed because it is successive and there is
no indication that Petitioner requested and received
permission from the United States Fourth Circuit Court of
Appeals before he submitted it to this Court. See Slack
v. McDaniel, 529 U.S. 473, 485-89 (200)[to qualify as a
"successive" petition, prior petition must have
been adjudicated on the merits].
so even if Petitioner is attempting to bring this successive
petition on grounds not raised in his original petition, as
under the AEDPA an individual may not file a second or
successive § 2254 petition for a writ of habeas corpus
(or the equivalent thereof) without first receiving
permission to do so from the appropriate circuit court of
appeals,  as the "gatekeeping" mechanism
of 28 U.S.C. § 2244(b)(3)(A) provides that,
"[b]efore a second or successive application permitted
by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order
authorizing the district court to consider the
application." See In re Williams. 364 F.3d 235,
238 (4th Cir. 2004) [the "initial determination of
whether a claim satisfies" the requirements of §
2244(b)(2) "must be made by a court of appeals"];
In re Fowlkes. 326 F.3d 542, 544 (4th Cir. 2003)
["Since Fowlkes has previously filed a section 2254
motion, he may only file a successive section 2254 motion if
he receives authorization from this court [the Fourth Circuit
Court of Appeals] under the standard established in section
2244(b)(3)(C)."]; United States v. Winestock,
340 F.3d 200, 205 (4th Cir. 2003)["In the absence of
pre-filing authorization [from the court of appeals], the
district court lacks jurisdiction to consider an application
containing abusive or repetitive claims."].
on the foregoing, it is recommended that the instant Petition
for a Writ of Habeas Corpus be summarily dismissed without
prejudice and without requiring Respondent to file a return.
of Right to File Objections to Report ...