United States District Court, D. South Carolina, Orangeburg Division
ORDER AND OPINION
Montavis Kentrail Gaines, proceeding pro se, filed
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
(“Habeas Petition”) on March 1, 2019. (ECF No.
1.) The matter before the court is a review of the Report and
Recommendation (“Report”) issued by the
Magistrate Judge on March 27, 2019. (ECF No. 15.) For the
reasons set forth below, the court ACCEPTS
the Report and Recommendation (ECF No. 15) and
DISMISSES the Habeas Petition (ECF No. 1).
FACTUAL AND PROCEDURAL BACKGROUND
is currently incarcerated at Ridgeland Correctional
Institution in Ridgeland, South Carolina, serving a
twenty-five (25) year sentence after a jury found him guilty
of armed robbery, criminal conspiracy, and assault and
battery with intent to kill. (ECF No. 15 at 1.) The
Magistrate Judge points out that “[t]he instant
petition is the second habeas action filed by Petitioner
challenging the same convictions.” (Id.
(citing Gaines v. Cothran, C/A No. 1:14-4652-JMC
(“Gaines I”)).) The South Carolina Court
of Appeals dismissed Petitioner's appeal in October 2009,
and remittitur was issued within the same month.
(Id. at 1-2.) In November 2019, Petitioner filed an
application for post-conviction relief (“PCR”) on
November 6, 2009, and the PCR court filed an order of
dismissal on April 11, 2012. (Id. at 2.)
Petitioner's appeal of the PCR court's decision was
denied by the South Carolina Court of Appeals in December
2014, and remittitur was issued in January 2015.
(Id.) Petitioner filed a complaint in Gaines
I on December 10, 2014, which resulted in this court
granting the respondent's Motion for Summary Judgment in
that case. (Id. (citing ECF No. 54).) Petitioner
appealed the court's ruling, and the Fourth Circuit Court
of Appeals dismissed the appeal in February 2017.
(Id. (citing ECF No. 66).) The Magistrate Judge
issued her Report and Recommendation on March 27, 2019 (ECF
No. 15), to which Petitioner filed objections on April 8,
2019 (ECF No. 19). Petitioner also filed a Motion to Stay on
April 10, 2019, requesting “the court to stay his
[H]abeas [P]etition until the Fourth Circuit grant[s] leave
to file a second or successive [H]abeas [P]etition.”
(ECF No. 21 at 1.)
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge only makes a
recommendation to this court, and the recommendation has no
presumptive weight. See Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The responsibility to make a final
determination remains with the court. Id. at 271. As
such, the court is charged with making de novo
determinations of those portions of the Report to which
specific objections are made. See 28 U.S.C. §
636(b)(1); see also Fed. R. Civ. P. 72(b)(3). In the
absence of specific objections to the Magistrate Judge's
Report, the court is not required to give any explanation for
adopting the Report. See Camby v. Davis, 718 F.2d
198, 199 (4th Cir. 1983). Rather, “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.” Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
committee's note). Thus, the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge's
recommendation or recommit the matter with instructions. 28
U.S.C. § 636(b)(1).
court is required to interpret pro se documents
liberally and will hold those documents to a less stringent
standard than those drafted by attorneys. See Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see also
Hardin v. United States, C/A No. 7:12-cv-0118-GRA, 2012
WL 3945314, at *1 (D.S.C. Sept. 10, 2012). Additionally,
pro se documents must be construed in a favorable
manner, “no matter how inartfully pleaded, to see
whether they could provide a basis for relief.”
Garrett v. Elko, No. 95-7939, 1997 WL 457667, at *1
(4th Cir. Aug. 12, 1997). Although pro se documents
are liberally construed by federal courts, “[ t ]he
‘special judicial solicitude' w it h which a
district court should view pro se complaints does
not transform the court into an advocate.” Weller
v. Dep't of Soc. Servs. for Balt., 901 F.2d 387, 391
(4th Cir. 1990).
Report provides that “[t]he instant Petition seeks a
writ of habeas corpus on the same conviction.”
(Id. (citing ECF No. 1).) The Magistrate Judge found
that “[b]ecause there is no showing that Petitioner
obtained authorization from the Fourth Circuit to file this
successive habeas petition in the district court, this court
does not have jurisdiction to consider it.”
(Id. at 3-4.) The Report provides that “[t]he
instant Petition seeks a writ of habeas corpus on the same
convictions that were addressed in Gaines I”
and that “[u]nder the [Anti-Terrorism and Effective
Death Penalty Act of 1996], an individual may not file a
second or successive petition for a writ of habeas corpus
under 28 U.S.C. § 2254, without first receiving
permission to do so from the appropriate circuit court of
appeals.” (ECF No. 15 at 2-3 (citing In re
Vial, 115 F.3d 1192, 1194 (4th Cir. 1997).
“Specifically, 28 U.S.C. § 2244(b)(3)(A) requires
a prospective applicant to file with the court of appeals a
motion for leave to file a second or successive habeas
application in the district court. 28 U.S.C. §
2244(b)(3)(A).” (Id.) Upon a thorough review
of the record, the court finds that Petitioner did not
receive permission from the Fourth Circuit, and therefore,
the court does not have jurisdiction to consider
Petitioner's Habeas Petition.
reasons above, the court ACCEPTS the
Magistrate Judge's Report and Recommendation (ECF No. 15)
and DISMISSES Petitioner Montavis Kentrail
Gaines' Writ of Habeas Corpus Petition (ECF No. 1).
Petitioner's Motion to Stay (ECF No. 21) is moot.
governing certificates of appealability 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 ...