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McClellan v. South Carolina Department of Corrections

United States District Court, D. South Carolina

July 12, 2019

James A. McClellan, a/k/a James Anderson McClellan, Petitioner,
v.
South Carolina Department of Corrections, Warden of Perry Correctional Institution, Respondent.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE.

         Petitioner, 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 l.[1]

         Under 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)).

         Nonetheless, 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 case here.

         Discussion

         On 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.[2] 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, https://publicindex.sccourts.org/Spartanburg/PublicIndex/CaseDetails.aspx? County=42&CourtAgency=42001&Casenum=C555406&CaseType=C&HKey=6668109528467 718375107436511812212210189118121101103761087649120771075711352787084111851101 22681051077056 (burglary); https://publicindex. sccourts.org/Spartanburg/PublicIndex/CaseDetails. aspx?County=42 &CourtAgency=42001&Casenum=C555407 & CaseType=C& HKey=818750755388558686111119651161065686557751765189831031111094953985210974791028570768810188485556 (kidnapping); https://publicindex.sccourts.org/Spartanburg/PublicIndex/CaseDetails.aspx7County =42&CourtAgency=42002&Casenum=l 994CP4201174&CaseType=V&HKey=5610281108103 545251975254987749518352538348116103113858187107107905711610278120981091127710 8785184119 (1 st PCR); https://publicindex.sccourts.org/Spartanburg/PublicIndex/CaseDetails.aspx? County=42&CourtAgency=42002&Casenum=2001CP4200830&CaseType=V&HKey=8997113 654783120102103104105488881103108906649116471058284704856774790501191129810971 7557891149011256 (2nd PCR); https://publicindex.sccourts.org/Spartanburg/PublicIndex/CaseDe tails.aspx?County=42&CourtAgency=42002&Casenum=2001CP4202189&CaseType=V&HKey =4311047671058683901051094710778102579074122794811654113786611053757479997511 9828487118984876998899 (3rd PCR); https://publicindex.sccourts.org/Spartanburg/PublicIndex/ CaseDetails.aspx?County=42&CourtAgency=42002&Casenum=2001CP4202352&CaseType=V &HKey=7787118675011911497981148611553118857081658755701141111106510911399701 011016978756586121797690859769 (4th PCR).[3]

         Petitioner 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.[4] The respondent filed a motion for summary judgment as to the previous petition on November 17, 2008, and a Roseboro[5] 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.

         "Under 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, [6] 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].[7]

         This is 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, [8] 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."[9] 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."].

         Recommendation

         Based 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.

         Notice of Right to File Objections to Report ...


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