Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hames v. Yeldell

United States District Court, D. South Carolina

November 7, 2019

Geneva Elaine Hames, #322393, Petitioner,
v.
Patricia Yeldell, Warden, Respondent.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE

         Petitioner, 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.

         DISCUSSION

         Under 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).

         Furthermore, 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.

         With 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. 270 (1971).

         Petitioner 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.

         The instant Petition is therefore successive, and is subject to summary dismissal.

         The 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[1] 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.

         RECOMMENDATION

         Accordingly, 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 and unauthorized.

         IT IS SO ORDERED.

         Petitioner's attention is directed to the important notice on the next page.

         Notice of Right to File Objections to Report ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.