United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
petitioner, Elson McKanic, a self-represented state prisoner,
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Petitioner files this action pursuant to
28 U.S.C. § 1915A. This Petition is before the court
pursuant to 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2)(c) (D.S.C.). Having reviewed the Petition in
accordance with applicable law, the court concludes that it
should be summarily dismissed without prejudice and without
requiring the respondent to file a return because it is
Factual and Procedural Background
indicates he was convicted in the Union County Court of
General Sessions of assault and battery of a high and
aggravated nature and sentenced to life imprisonment without
the possibility of parole on September 24, 1991. (Pet., ECF
No. 1 at 1.) After exhausting his state court remedies to
collaterally review his conviction, Petitioner filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 in this court in 2004. McKanic v.
Bazzle, C/A No. 9:04-cv-1835-HMH. The court dismissed
the 2004 petition on summary judgment, finding that the
petition was not timely filed. Subsequently, Petitioner filed
three more § 2254 petitions that were dismissed as
successive. McKanic v. Ozmint, C/A No.
9:06-cv-1598-HMH; McKanic v. Ozmint, C/A No. 9:07-
cv-800-HMH; McKanic v. Lewis, C/A No. 0:19-2680-HMH.
Petitioner now seeks another petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, claiming that
because the prosecutor failed to provide him with notice that
the State would seek life without parole pursuant to S.C.
Code § 17-25-45(H), his sentence exceeds the statutory
maximum of twenty-five years' imprisonment.
Standard of Review
established local procedure in this judicial district, a
careful review has been made of the pro se petition
filed in this case pursuant to the Rules Governing §
2254 Cases, 28 U.S.C. § 2254; the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214; 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) (en banc); Todd v. Baskerville, 712
F.2d 70 (4th Cir. 1983).
court is required to liberally construe pro se
petitions, which are held to a less stringent standard than
those drafted by attorneys. Erickson v. Pardus, 551
U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d
206, 214 (4th Cir. 2016). Nonetheless, 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 cognizable in a federal district court. See
Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th
Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S.
662, 684 (2009) (outlining pleading requirements under Rule 8
of the Federal Rules of Civil Procedure for “all civil
instant case should be summarily dismissed as a successive
§ 2254 petition. “[A]n individual may not file a
second or successive § 2254 petition for a writ of
habeas corpus or § 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); see
also 28 U.S.C. § 2244(b). The issue of
successiveness of a habeas petition may be raised by the
court sua sponte. See Rodriguez v. Johnson,
104 F.3d 694, 697 n.1 (5th Cir. 1997); Davis v.
McFadden, C/A No. 0:14-2662-RMG, 2014 WL 5305931, at *4
(D.S.C. Oct. 15, 2014) (adopting and incorporating Report and
Recommendation). A petition is only second or successive if
the original petition was adjudicated on the merits.
See 28 U.S.C. § 2244(b). A finding that the
petition is untimely is a decision on the merits that
triggers § 2244's requirement that successive
petitions only be filed with permission of a circuit court of
appeals. See In re Rains, 659 F.3d 1274, 1275 (10th
Cir. 2011) (collecting cases).
Petitioner must obtain a Pre-Filing Authorization from the
United States Court of Appeals for the Fourth Circuit before
this court may consider a second or successive § 2254
petition. See Gonzalez v. Crosby, 545 U.S. 524, 530
(2005) (“[B]efore the district court may accept a
successive petition for filing, the court of appeals must
determine that it presents a claim not previously raised that
is sufficient to meet § 2244(b)(2)'s new-rule or
actual-innocence provisions.”); see also In re
Williams, 330 F.3d 277 (4th Cir. 2003). As Petitioner
provides no indication that he received such permission from
the Fourth Circuit prior to filing this Petition, it is
subject to summary dismissal. Petitioner can obtain the forms
necessary to seek authorization to file a second or
successive habeas petition from the Clerk's Office of the
Fourth Circuit Court of Appeals.
the court recommends that the Petition for a writ of habeas
corpus be dismissed without prejudice and without requiring
the respondent to file a return.
of Right to File Objections to Report ...