United States District Court, D. South Carolina, Charleston Division
F. ANDERSON, JR. UNITED STATES DISTRICT JUDGE.
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
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 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.
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).
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).
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).
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.”).
Report sets forth in detail the relevant facts and standards
of law on this matter, and the court incorporates those
without a recitation.
instant petition is Petitioner's fourth § 2254
petition challenging his murder convictions. 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).
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).
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.