United States District Court, D. South Carolina
Ardon P. Cato, II, #316535, Petitioner,
Donnie Stonebreaker, Warden, Respondent.
REPORT AND RECOMMENDATION
E. Rogers, III United States Magistrate Judge
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
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).
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.
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.
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).
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.
it is recommended that the § 2254 Petition in this case
be dismissed without prejudice and without
requiring the respondent to file a return, as successive
IS SO ORDERED
attention is directed to the important notice on the next
of Right to File Objections to Report and
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 ...