Opinion
C. A. 6:22-cv-00242-RMG-KFM
02-04-2022
Anthony Bernard Chapman, Petitioner, v. Warden Williams, Respondent.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE
The 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 Civil 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. For the reasons set forth below, it is recommended that the petitioner's § 2254 petition be summarily dismissed.
ALLEGATIONS
Petitioner's Conviction and Sentence
The petitioner is currently serving a sentence of twenty years' imprisonment for trafficking crack cocaine, possession with intent to distribute powder cocaine, and manufacturing marijuana (with five-year and twenty-year sentences for his second and third charges, respectively, running concurrent with the first twenty-year sentence). See Spartanburg County Public Index, https://publicindex.sccourts.org/Spartanburg/PublicIndex/ PISearch.aspx (enter the petitioner's name and M088867, M088868, M088869) (last visited February 4, 2022).
The court takes judicial notice of the records in the petitioner's criminal case in the Spartanburg County General Sessions Court, as well as the petitioner's post-conviction relief action in the Spartanburg County Court of Common Pleas and a prior action in this court brought pursuant to § 2254. See Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial notice of matters of public record.”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
Petitioner's Prior Collateral Attacks in the State Court
On December 8, 2011, through counsel, the petitioner filed a post-conviction relief action (“PCR”) in the Spartanburg County Court of Common Pleas. See Spartanburg County Public Index (enter the petitioner's name and 2011-CP-42-05457) (last visited February 4, 2022). In the PCR, the petitioner asserted ineffective assistance of counsel (“IAC”) based upon: counsel's failure to investigate, to inform the petitioner of discovery pertaining to his arrest, to file a notice of appeal, to challenge the search warrant and arrest all of which he alleges made his guilty plea involuntary. Id. The petitioner's PCR was denied on May 20, 2016. Id. The petitioner appealed, but the Supreme Court denied the petitioner's request for a writ of certiorari. See Chapman v. State of S.C., C/A No. 2016-001230 (S.C.).
After the denial of his federal habeas petition, outlined infra, the petitioner filed a second PCR action, pro se, in the Spartanburg County Court of Common Pleas. See Spartanburg County Public Index (enter the petitioner's name and 2020-CP-42-00681) (last visited February 4, 2022). As grounds for relief, the petitioner alleged IAC of appellate counsel, a sixth amendment violation, and a due process violation. Id. The second PCR action was dismissed as untimely and successive. Id. The dismissal order also noted that IAC of PCR counsel is not a ground for relief. Id. The petitioner appealed, but his appeal was dismissed. Chapman v. State of S.C., C/A No. 2021-000351 (S.C.). Petitioner's Prior Collateral Attacks in this Court
The petitioner, through counsel, filed a federal habeas petition in this court pursuant to § 2254 on February 12, 2019. Chapman v. Tucker, C/A No. 6:19-cv-00404-RMG (D.S.C.). The petition raised one ground for relief: denial of due process based upon deficiencies in the transcript provided at the PCR hearing. Id. at doc. 1. The petitioner then an amended petition, asserting a second ground for relief: IAC of plea counsel and involuntary guilty plea. Id. at doc. 21. The respondent's motion for summary judgment was granted and the petitioner's petition was dismissed on the merits based upon procedural default, with Ground 1 noted as not supporting an independent claim for relief. Id. at docs. 24; 27. The petitioner did not appeal.
Petitioner's Present Action
The petitioner then filed the instant action, arguing that it is not successive because he returned to state court and exhausted his grounds for relief (doc. 1-1). As ground one for relief the petitioner asserts IAC of PCR counsel (doc. 1 at 5-8). Ground two for relief is IAC of plea counsel (id. at 8). The petitioner asserts that his petition is timely because his prior collateral attacks tolled the statute of limitations (id. at 14-15). For relief, the petitioner seeks release from custody (id. at 15).
STANDARD OF REVIEW
The undersigned has reviewed the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
On April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 (the “AEDPA”) amended 28 U.S.C. § 2254 and other habeas statutes:
The AEDPA effected a No. of substantial changes regarding the availability of federal postconviction relief to individuals convicted of crimes in federal and state courts. Of particular importance here are the provisions of the AEDPA codifying and extending judicially constructed limits on the consideration of second and successive applications for collateral relief. Under the AEDPA, an individual may not file a second or successive § 2254 petition for a writ of habeas corpus or § 2255 motion to vacate sentence 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) (footnote and internal citation omitted). The “gatekeeping” mechanism created by the AEDPA amended § 2244(b) to provide:
The prospective applicant must file in the court of appeals a motion for leave to file a second or successive habeas application in the district court. A three-judge panel has 30 days to determine whether “the application makes a prima facie showing that the application satisfies the requirements of” § 2244(b).Felker v. Turpin, 518 U.S. 651, 657 (1996) (internal citations omitted).
The instant action qualifies as a second or successive § 2254 action because the petitioner has previously filed a § 2254 petition, which was denied on the merits. Chapman v. Tucker, C/A No. 6:19-cv-00404-RMG, at docs. 24; 27 (D.S.C.). The petitioner asserts that this petition is not successive because he filed a second PCR action to exhaust his claims (doc. 1-1). In Slack v. McDaniel, the Supreme Court found that a habeas petition after “an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition.” Slack, 529 U.S. at 485-86. Here, however, the petitioner's prior petition was adjudicated on the merits, with the respondent's motion for summary judgment granted (noting procedural default and that ground one of the petition did not provide an independent ground for relief). Chapman v. Tucker, C/A No. 6:19-cv-00404-RMG, at docs. 24; 27 (D.S.C.). A summary judgment grant in favor of a respondent, regardless of a procedural bar, is considered an adjudication on the merits. Harvey v. Koran, 278 F.3d 370, 379-80 (4th Cir. 2002) (noting “dismissal of a habeas petition for procedural default is a dismissal on the merits for purposes of determining whether a habeas petition is successive.” (internal citations omitted)), abrogated on other grounds by Skinner v. Switzer, 562 U.S. 521 (2011). As such, the instant matter is a successive § 2254 petition.
Nevertheless, 28 U.S.C. § 2244(b)(2) provides that in some circumstances a petitioner may bring a second or successive § 2254 action. That statute permits a court of appeals to determine whether to authorize a successive petition. Thus, the United States Court of Appeals for the Fourth Circuit-not this District Court-is the proper tribunal to decide whether to authorize a successive § 2254 petition. See United States v. Winestock, 340 F.3d 200, 205-06 (4th Cir. 2003), abrogated in part on other grounds by United States v. McRae, 793 F.3d 392 (4th Cir. 2015). Because it appears that the petitioner did not obtain authorization from the Fourth Circuit Court of Appeals to file this petition, this Court does not have jurisdiction to consider it. Id.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2254 petition be dismissed without requiring the respondent to file an answer or return. The attention of the parties is directed to the important notice on the next page.
The petitioner cannot cure the deficiencies noted herein; however, dismissal without prejudice is recommended because the Court of Appeals has held that dismissals for lack of subject-matter jurisdiction must be without prejudice. S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
IT IS SO RECOMMENDED.
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
250 East North Street, Room 2300
Greenville, South Carolina 29601
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).