United States District Court, D. South Carolina
Leroy L. Staton, Petitioner,
Superintendent Lee Correctional Institution, Respondent.
TIMOTHY M. CAIN UNITED STATES DISTRICT JUDGE
matter is before the court on Petitioner’s petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(ECF No. 1). In accordance with 28 U.S.C. § 636(b) and
Local Rule 73.02(B)(2), D.S.C., all pre-trial proceedings
were referred to a magistrate judge. On August 1, 2019,
Magistrate Judge Jacquelyn D. Austin filed a Report and
Recommendation recommending that this petition be dismissed
with prejudice as successive and untimely. (ECF No. 17).
Petitioner was advised of his right to file objections to the
Report. Id. at 15. Petitioner timely filed
objections to the Report. (ECF No. 19).
Magistrate Judge makes only a recommendation to the court.
The Report has no presumptive weight and the responsibility
to make a final determination in this matter remains with
this court. See Mathews v. Weber, 423 U.S. 261,
270-71 (1976). In making that determination, the court is
charged with conducting a de novo review of those portions of
the Report to which either party specifically objects.
See 28 U.S.C. § 636(b)(1). Then, the court may
accept, reject, or modify the Report or recommit the matter
to the magistrate judge. Id.
Report, the magistrate judge sets forth the background and
procedural history relating to Petitioner’s
convictions. (ECF No. 17 at 1-4). Petitioner has not objected
to this section of the Report. Briefly, Petitioner was
convicted of murder, kidnapping, criminal sexual conduct
(“CSC”) in the first degree, and criminal
conspiracy. Id. at 2. He was sentenced to life
imprisonment for the murder, a consecutive sentence of thirty
years imprisonment for the CSC, and a concurrent sentence of
five years for criminal conspiracy. Id. Petitioner
was not sentenced on the kidnapping count because under South
Carolina law, where a life sentence is imposed on a murder
conviction, a sentence is not to be imposed for a kidnapping
conviction. Id. His convictions and sentences were
affirmed on direct appeal, and the denial of his application
for post-conviction relief was also affirmed on appeal.
Id. at 3. On March 24, 2011, Petitioner filed a
petition for habeas relief pursuant to § 2254 in this
court, which was dismissed with prejudice as time-barred.
Staton v. Warden Kershaw Corr. Inst., No.
8:11-cv-00745-TMC-JDA, 2012 WL 33214 (D.S.C. Jan. 6, 2012).
The Fourth Circuit Court of Appeals affirmed this dismissal.
Staton v. Warden Kershaw Corr. Inst., 474 Fed.
App’x. 129 (4th Cir. 2012).
Report, the magistrate judge finds that the instant petition
is successive and time-barred. (ECF No. 17 at 13). Further,
she determines that Petitioner has failed to show actual
innocence and, therefore, is not entitled to the application
of equitable tolling. Id. Accordingly, she
recommends that the court dismiss this habeas petition as
successive and barred by the applicable statute of
objections, Petitioner contends that the magistrate judge
erred in finding this petition is successive because he
contends that the issues he is now raising were never
adjudicated on the merits. (ECF No. 19 at 1). He further
argues that the magistrate judge erred in determining that
the evidence he now seeks to rely on is not new evidence.
Id. He contends that the evidence was unknown to him
despite his exercise of due diligence. Id. He also
argues that the time bar “is unconstitutional because
it declares defendants permanently guilty by legislative
fiat.” Id. at 3. Finally, he contends that he
is actually innocent. Id. at 5.
reviewing the record, the court finds Petitioner’s
objections to be without merit. Here, as the magistrate judge
noted, this petition is successive. Petitioner previously
filed a § 2254 habeas petition and it was denied on the
merits. See Staton, 2012 WL 33214, at *1.
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) established a stringent set of procedures that a
prisoner “in custody pursuant to the judgment of a
State court, ” 28 U.S.C. § 2254(a), must follow if
he wishes to file a “second or successive” habeas
corpus application challenging that custody, §
2244(b)(1). In pertinent part, before filing the application
in the district court, a prisoner “shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.” *153
§ 2244(b)(3)(A). A three-judge panel of the court of
appeals may authorize the filing of the second or successive
application only if it presents a claim not previously raised
that satisfies one of the two grounds articulated in §
2244(b)(2). § 2244(b)(3)(C); Gonzalez v. Crosby, 545
U.S. 524, 529–530, 125 S.Ct. 2641, 162 L.Ed.2d 480
(2005); see also Felker v. Turpin, 518 U.S. 651,
656–657, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996).
Burton v. Stewart, 549 U.S. 147, 153 (2007); see
also In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)
(“Under the ADEPA, an individual may not file a second
or successive 2254 petition for a writ of habeas corpus . . .
without first receiving permission to do so from the
appropriate circuit court of appeals.”). Because
Petitioner has not obtained authorization from the Fourth
Circuit Court of Appeals to file a successive § 2254
habeas petition, this court is without jurisdiction to
consider the petition. Burton, 549 U.S. at 152.
on the foregoing, the court finds that this petition is
successive. Accordingly, the court adopts the report (ECF No.
17) as modified, and the Petition is DISMISSED
without prejudice for lack of jurisdiction and without
requiring Respondent to file an answer or
certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). A prisoner
satisfies this standard by demonstrating that reasonable
jurists would find both that his constitutional claims are
debatable and that any dispositive procedural rulings by the
district court are also debatable or wrong. See Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003); Rose v.
Lee, 252 F.3d 676, 683 (4th Cir. 2001). In the instant
matter, the court finds that Petitioner has failed to make
“a substantial showing of the denial of a
constitutional right.” Accordingly, the court declines
to issue a certificate of appealability.
IS SO ORDERED.