United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
proceeding pro se, 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.
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 submitted in this case should
be summarily dismissed due to being successive.
respect to Petitioner's convictions and sentences,
Petitioner's sole federal remedies are a writ of habeas
corpus under either 28 U.S.C. § 2254 or 28 U.S.C. §
2241, which remedies can be sought only after the Petitioner
has exhausted his state court remedies. “It is the rule
in this country that assertions of error in criminal
proceedings must first be raised in state court in order to
form the basis for relief in habeas. Claims not so raised are
considered defaulted.” Beard v. Green, 523
U.S. 371, 375 (1998) (citing Wainwright v. Sykes,
433 U.S. 72 (1977)); see also 28 U.S.C. §
2254(b); Braden v. 30th Judicial Circuit Court, 410
U.S. 484, 490-91 (1973); Picard v. Connor, 404 U.S.
has filed a previous § 2254 petition in this Court
challenging the same conviction and sentence challenged
herein: counts for grand larceny, kidnapping, assault and
battery with intent to kill, armed robbery, and burglary,
first degree(dwelling). (ECF No. 1); Hames v. Warden,
Leath, No. 4:11-cv-710-CMC; No. 4:18-cv-1026-CMC, No.
4:19-1543-CMC. This Court may take judicial notice of filings
in Petitioner's prior § 2254 case (4:11-cv-710-CMC),
including the Order adopting the Report and Recommendation
and granting Respondent's motion for summary judgment and
dismissing the petition with prejudice. See Slaughter v.
Wright, 135 F.2d 613, 615 (4th Cir. 1943). Petitioner
filed another successive Petition in 2018, No. 4:18-1026-CMC,
which the Fourth Circuit Court of Appeals dismissed.
Petitioner filed another successive Petition this year.
Hames v. Warden, No. 4:19-1543-CMC.
instant Petition is therefore successive, and is subject to
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.
“Dismissal of a habeas petition for procedural default
is a dismissal on the merits for purposes of determining
whether a habeas petition is successive.” 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 fourth attack of
the same conviction and the first petition's adjudication
is considered to be on the merits, the instant Petition is
successive. 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 ...