Opinion
C. A. 5:21-3996-RMG-KDW
01-24-2022
Shaheen Cabbagestalk, a/k/a James Cabbagestalk, Petitioner, v. Warden of McCormick Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge
Shaheen Cabbagestalk, a/k/a James Cabbagestalk, (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends the district judge dismiss the petition in this case without requiring the respondent to file an answer. I. Factual and Procedural Background
The instant petition is the fourth habeas action filed by Petitioner challenging his August 2007 armed robbery conviction. See Cabbagestalk v. McFadden, C/A No. 5:14-3771-RMG (July 1, 2015) (“Cabbagestalk I”), Cabbagestalk v. McFadden, C/A No. 5:14-4690-RMG (Jan. 16, 2015), and Cabbagestalk v. Warden, C/A No. 5:20-859-RMG (Apr. 7, 2020). A review of Petitioner's prior case reveals that he was indicted by the Dillon County Grand Jury in March 2007 for assault and battery with intent to kill (“ABWIK”) and armed robbery. Cabbagestalk I, 1 ECF No. 119. On August 27-28, 2007, Petitioner proceeded to a jury trial and during the testimony of a State's witness, Petitioner notified the court that he wanted to plead guilty. Id. Petitioner entered a guilty plea to the armed robbery charge, and the State dismissed the ABWIK charge. Id. The court sentenced Petitioner to eighteen years imprisonment. Id. Petitioner appealed his conviction and sentence, and the South Carolina Court of Appeals dismissed the appeal. Id. The remittitur was issued on February 25, 2010. Id.
It is appropriate for this court to take judicial notice of Petitioner's prior cases. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“[t]he most frequent use of judicial notice of ascertainable facts is in noticing the content of court records”) (citation omitted).
Petitioner filed an application for post-conviction relief (“PCR”) on March 9, 2010 that the PCR court dismissed on June 6, 2012. Id. Petitioner appealed the denial of his PCR by way of a petition for a writ of certiorari, and the South Carolina Supreme Court denied Petitioner's petition. Id. The remittitur was issued on September 29, 2014. Id.
Petitioner filed Cabbagestalk I on September 25, 2014, as amended on December 11, 2014. Cabbagestalk I, ECF Nos. 1, 25. This court considered the petition on the merits and granted Respondent's Motion for Summary Judgment. Id., ECF No. 128. Petitioner appealed the dismissal of his petition, and the Fourth Circuit Court of Appeals dismissed the appeal on December 21, 2015. Id., ECF No. 163. The instant petition seeks a writ of habeas corpus on the same conviction.
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 2 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
The instant petition seeks a writ of habeas corpus on the same conviction that was addressed in Cabbagestalk I. Under the AEDPA, 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. 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). A three-judge panel has 30 days to determine whether “the application makes a prima facie showing that the application satisfies the requirements of [28 U.S.C. § 2244(b)].” 28 U.S.C. §§ 2244(b)(3)(B)-(D). For this court to consider a second or successive § 2254 petition, Petitioner must obtain a Pre-Filing Authorization from the Fourth Circuit under 28 U.S.C. § 2244(b)(3). See In re Williams, 330 F.3d 277 (4th Cir. 2003); In re Fowlkes, 326 F.3d 542 (4th Cir. 2003). Because there is no 3 showing 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. III. Conclusion and Recommendation
The undersigned recommends the petition in the above-captioned case be dismissed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.” 4
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n 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 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). 5