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Dillard v. Lewis

United States District Court, D. South Carolina, Charleston Division

January 3, 2020

Robert Earl Dillard #220045, Petitioner,
Scott Lewis, Warden, Respondent.



         I. Introduction

         Robert Earl Dillard (“Petitioner”), proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Plaintiff is a South Carolina Department of Corrections (“SCDC”) inmate incarcerated at the Perry Correctional Institution (“Perry”). This case is subject to summary dismissal.

         In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the case was referred to the Magistrate Judge. The Magistrate Judge assigned to this action[1] prepared a thorough Report and Recommendation (“Report”). (ECF No.4). In the Report, the Magistrate Judge recommends that this Court summarily dismiss the petition without prejudice and that a certificate of appealability be denied. (ECF No. 6). Plaintiff filed an objection to the Report. (ECF No. 7). Thus, this matter is ripe for this Court's review.

         A district court is required to conduct a de novo review only of the specific portions of the Magistrate Judge's Report to which objections are made. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b); see also Carniewski v. W.Va. Bd. of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to portions of the Report, the Court is not required to give an explanation for adopting the Report. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Thus, the Court must only review those portions of the Report to which Plaintiff has made specific written objections. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005).

         “An objection is specific if it ‘enables the district judge to focus attention on those issues- factual and legal-that are at the heart of the parties' dispute.'” Dunlap v. TM Trucking of the Carolinas, LLC, No. 0:15-cv-04009-JMC, 2017 WL 6345402, at *5 n.6 (D.S.C. Dec. 12, 2017) (citing One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996)). A specific objection to the Magistrate Judge's Report thus requires more than a reassertion of arguments from the Complaint or a mere citation to legal authorities. See Workman v. Perry, No. 6:17-cv-00765-RBH, 2017 WL 4791150, at *1 (D.S.C. Oct. 23, 2017). A specific objection must “direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

         “Generally stated, nonspecific objections have the same effect as would a failure to object.” Staley v. Norton, No. 9:07-0288-PMD, 2007 WL 821181, at *1 (D.S.C. Mar. 2, 2007) (citing Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)). The Court reviews portions “not objected to-including those portions to which only ‘general and conclusory' objections have been made-for clear error.” Id. (emphasis added) (citing Diamond, 416 F.3d at 315; Camby, 718 F.2d at 200; Orpiano, 687 F.2d at 47).

         Where an objection is “nonspecific, unrelated to the dispositive portions of the Magistrate Judge's Report and Recommendation, or merely restate[s] . . . claims, ” the Court need not conduct any further review of that objection. Field v. McMaster, 663 F.Supp.2d 449, 452 (D.S.C. 2009); see also McNeil v. S.C. Dept. of Corrections, No. 5:12-2880-MGL, 2013 WL 1102881, at *1 (D.S.C. Mar. 15, 2013) (finding petitioner's objections to be without merit where the objections were “non-specific, unrelated to the dispositive portions of the Magistrate Judge's Report, and consist[ed] of a reassertion of the arguments” made in the petition); Arbogast v. Spartanburg Cty., No. 07:11-cv-00198-GRA, 2011 WL 5827635, at *2 (D.S.C. Nov. 17, 2011) (finding that plaintiff's objections were not specific where the objections were “general and conclusory in that they merely reassert[ed] that his conviction was wrongful.”).

         The Report sets forth in detail the relevant facts and standards of law on this matter, and the court incorporates those without a recitation.

         II. Discussion

         The instant petition is Petitioner's fourth § 2254 petition challenging his murder convictions.[2] As the Report points out, Petitioner's first § 2254 petition was dismissed with prejudice as time-barred, and therefore it was “one the merits.” (ECF No. 4). Then, his second and third petitions were dismissed without prejudice for lack of jurisdiction because they were successive and unauthorized. Id. Here, the instant petition contains the same three claims as his two prior petitions. (ECF No. 1).

         AEDPA provides that “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1)(emphasis added). To qualify as successive, the dismissal of the first habeas petition must have been “on the merits.” Slack v. McDaniel, 529 U.S. 473, 485-89 (2000). An adjudication on the merits for purposes of successiveness includes those petitions which were dismissed as time-barred. See, e.g., In re Rains, 659 F.3d 1274, 1275 (10th Cir 2011); Quezada v. Smith, 624 F.3d 514, 519-20 (2d Cir. 2010).

         On September 9, 2012, Petitioner filed objections to the Report. (ECF No. 7). In his objections, he contends that the Magistrate Judge erred in concluding that his claims should be dismissed as successive because: (1) he was “denied the right to a fair trial by the state's knowing use of perjured testimony to convict him;” (2) “the trial court lacked subject-matter jurisdiction to convict and sentence him;” and (3) “He suffered a miscarriage of justice when he was convicted upon a standard of guilt below that required by the fourteenth Amendment Due process clause.” Id. Petitioner's objections fail to grasp the specific reason for the Magistrate Judge's recommendation of dismissal. Accordingly, this Court finds that the instant petition is successive and unauthorized.

         III. ...

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