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Cato v. Stonebreaker

United States District Court, D. South Carolina, Florence Division

August 21, 2019

Ardon P. Cato, II, Petitioner,
Donnie Stonebreaker, Warden, Respondent.



         This matter is before the court on Petitioner's pro se petition filed in this court pursuant to 28 U.S.C. §2254, challenging his convictions in state court for two counts of assault and battery with intent to kill and murder. ECF No. 1. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(c), DSC, this matter was referred to United States Magistrate Judge Thomas E. Rogers, III, for pre-trial proceedings and a Report and Recommendation (“Report”). On August 2, 2019, the Magistrate Judge issued a Report recommending this matter be dismissed as successive. ECF No. 8. The Magistrate Judge advised Petitioner of the procedures and requirements for filing objections to the Report and the serious consequences if he failed to do so. Petitioner filed objections on August 19, 2019. ECF No. 10.

         The 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. 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. 28 U.S.C. § 636(b)(1). The court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in 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 recommendation.'”) (quoting Fed.R.Civ.P. 72 advisory committee's note). Petitioner objects to the Report, arguing he presents different grounds for relief, specifically newly discovered evidence, in this Petition and therefore it is not successive. ECF No. 10. He contends he challenged his convictions based on ineffective assistance of counsel in his first round of state PCR filings, appeals, and § 2254 Petition, and this Petition is based on “totally different grounds, totally different proceedings.” Id. at 2. He notes “[t]hese prior proceeding in this case No. were not ruled upon as successive. This current proceeding is not successive.” Id. He requests he be released from state custody immediately. Id.

         In most cases, the fact that a petitioner raises new claims in a § 2254 petition, after already filing one, likely would not allow a petitioner to bring additional later claims. See § 2244(b)(1) (“A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless” very specific circumstances apply.) (emphasis added). However, giving Petitioner the benefit of the doubt, it appears he may be alleging that his Petition falls under § 2244(b)(2)(B)(i): the factual predicate for the claim could not have been discovered previously through the exercise of due diligence.[1] If this is the case, he may be able to bring a second-in-time §2254 motion; however, he must move for permission in the Fourth Circuit before filing in this court. § 2244(b)(3)(A) (“Before 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.”); United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003) (“The court of appeals must examine the application to determine whether it contains any claim that satisfies §2244(b)(2) . . . If so, the court should authorize the prisoner to file the entire application in the district court.”). Therefore, this petition is successive in nature and the court is without jurisdiction to consider it. Accordingly, after de novo review, the court adopts and incorporates the Report and Recommendation by reference in this Order.[2] This matter is dismissed without prejudice and without requiring Respondent to file a return.


         The governing law provides that:

(c)(2) A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists would find this court's assessment of his constitutional claims is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate of appealability has not been met. Therefore, a certificate of appealability is denied.

         IT IS SO ORDERED.



[1] Petitioner has provided very few facts regarding his current claim(s). He refers the court to his Rule 29(b) motion filed in the South Carolina courts; however, this court does not have access to those filings. If he proceeds to request permission from the Fourth Circuit, he must include facts regarding the alleged newly discovered evidence.

[2] The court notes one case cited in the Report, In re Williams, 444 F.3d 233 (4th Cir. 2006), has been abrogated by the Supreme Court decision in Magwood v. Patterson,561 U.S. 320 (2010), to the extent it applies a claims-based approach to determine whether a petition is second or successive. After Magwood, the second or successive inquiry applies to the habeas petition as a ...

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