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Cato v. Stonebreaker

United States District Court, D. South Carolina

August 2, 2019

Ardon P. Cato, II, #316535, Petitioner,
v.
Donnie Stonebreaker, Warden, Respondent.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge

         Petitioner proceeding pro se and in forma pauperis, brings this action pursuant to 28 U.S.C. § 2254 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. The Petition is subject to dismissal because it is successive and presented without an order from the Fourth Circuit Court of Appeals authorizing this Court to consider a successive petition.

         DISCUSSION

         Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings and motion to proceed in forma pauperis pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted 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, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal. 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. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).

         Furthermore, 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 Rules Governing Section 2254 Cases in the United States District Courts. Following the required initial review, it is recommended that the Petition should be summarily dismissed due to being successive and lacking authorization from the Fourth Circuit Court of Appeals.

         On July 27, 2006, Petitioner pleaded guilty to murder (05-GS-26-3412) and two counts of assault and battery with intent to kill (05-GS- 26-3409; 05-GS-26- 3410) in Horry County. On September 6, 2006, Petitioner filed his first PCR; he did not file a direct appeal. The Order of Dismissal on the PCR was filed June 4, 2007. Petitioner appealed. On May 28, 2009, the South Carolina Court of Appeals denied the petition for certiorari. Petitioner filed a habeas petition in this court on August 13, 2009. Cato v. Padula, No. 4:09-cv-02110-CMC. On August 12, 2010, this court granted summary judgment for the respondent and dismissed the petition with prejudice.

         In the instant action, Petitioner is again contesting the same three convictions for which he was convicted and sentenced for in 2006, that he previously contested before this court in 2009. (ECF No. 1).

         The standard for determining whether a petition is successive appears in Slack v. McDaniel, 529 U.S. 473, 485-89 (2000). A successive habeas petition cannot be filed without first obtaining pre-filing authorization from the court of appeals. 28 U.S.C. 2244(b)(3)(A); In re Williams, 444 F.3d 233, 235 (4th Cir. 2006). To be considered successive, the second habeas petition must be the second attack of the same conviction and the first habeas petition must have been finally adjudicated on the merits. See Williams, 444 F.3d at 236. A summary judgment grant in favor of a respondent, regardless of addressing any procedural bar, is considered an adjudication on the merits. Harvey v. Koran, 278 F.3d 370, 379 (4th Cir. 2002) abrogated on other grounds by Skinner v. Switzer, 562 U.S. 521 (2011). Because the instant Petition is the second attack of the same convictions and the first petition's adjudication is considered to be on the merits, the instant Petition is successive. See Cato v. Padula, No. 4:09-cv-02110-CMC. Therefore, since Petitioner did not first obtain permission from the Fourth Circuit Court of Appeals to file this successive § 2254 Petition, this court does not have jurisdiction over Petitioner's instant Petition, and thus, the Petition is subject to summary dismissal.

         RECOMMENDATION

         Accordingly, it is recommended that the § 2254 Petition in this case be dismissed without prejudice[1] and without requiring the respondent to file a return, as successive and unauthorized.

         IT IS SO ORDERED

         Petitioner's attention is directed to the important notice on the next page.

         Notice of Right to File Objections to Report and Recommendation

         The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, 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 ...


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