Opinion
C/A 5:23-cv-6889-RBH-KDW
05-22-2024
Brandon Christian, a/k/a Brandon Jabar Christian, Petitioner, v. South Carolina Department of Corrections, Warden Nelson, Respondent.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Brandon Christian (“Petitioner”), proceeding pro se, brings this action seeking a petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is presently confined at the Broad River Correctional Institution in Columbia, South Carolina. ECF No. 1 at 1. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Judge. For the reasons below, this action is subject to summary dismissal.
BACKGROUND
Allegations from the Petition
Petitioner commenced this action by filing a standard form Petition for a writ of habeas corpus under 28 U.S.C. § 2254 along with supporting documents. ECF Nos. 1; 12. Petitioner also filed a document captioned as a motion to vacate sentence and a document captioned as an amended motion to vacate sentence. ECF Nos. 2; 18. The Court has carefully reviewed each of Petitioner's submissions.
Petitioner alleges he was convicted after pleading guilty in the Greenville County Court of General Sessions to the crimes of voluntary manslaughter at case number 2011-GS-23-3395, armed robbery at case number 2011-GS-23-3396, attempted murder at case number 2011-GS-23-3397, and armed robbery at case number 2011-GS-37-0233. ECF No. 1 at 1-2. He was sentenced on April 17, 2012, to a total term of imprisonment of 25 years. Id.
Petitioner asserts the following grounds in his Petition, which are provided substantially verbatim:
GROUND ONE: Ineffective Assistance of Counsel.
Supporting facts: Counsel [erred] by not discussing Juvenile's jurisdiction with petitioner before, during, or after circuit court proceedings. Counsel did not investigate the prosecutor's chain of custody to see if the prosecution had exhausted state remedies to have family court [r]elinquish it's exclusive original jurisdiction.
GROUND TWO: Circuit Court lacked Jurisdiction to [try] Petitioner's Case.
Supporting facts: Being that the Family Court had not [r]elinquished its jurisdiction. Nor did a Family Court judge or a Circuit Court judge order to the court to try the Petitioner's case in writing.
GROUND THREE: Prosecutorial/Judicial Misconduct, by allowing a Child/Juvenile to plead Guilty in a General Sessions courtroom.Supporting facts: State did not exhaust appropriate remedies to retain jurisdiction of the petitioner.
GROUND FOUR: Circuit Court [erred] Legally by Mis-applying Controlling Law, [both State] and Federal.
Supporting facts: Circuit Court actions led to other proceeding courts to render a decision [that] deprived petitioner of due process of law, and hindered petitioner in future proceedings.Id. at 5, 7, 8, 10. For his relief, Petitioner requests that his sentence be vacated. Id. at 15.
State Court Procedural History
By further way of background, the undersigned notes the following procedural history from Petitioner's state court cases relevant to the Petition filed in this case.
The court takes judicial notice of Plaintiff's state court actions including the original criminal proceedings, his applications for post-conviction relief, and his appeals from those actions. See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that 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.'”).
Conviction and Sentence
As noted, Petitioner pled guilty to voluntary manslaughter, armed robbery, attempted murder, and armed robbery, and on April 17, 2012, he was sentenced to a total of 25 years' imprisonment. See South Carolina v. Christian, Nos. 2011-GS-23-3395, 2011-GS-23-3396, 2011-GS-23-3397, available at the Greenville County Thirteenth Judicial Circuit Public Index, https://publicindex.sccourts.org/Greenville/PublicIndex/ PISearch.aspx (search by case numbers “I481510,” “I481537,” and “I481538”) (last visited Feb. 15, 2024). Petitioner did not file a direct appeal.
Post-Conviction Relief Actions
Petitioner then filed his first post-conviction relief (“PCR”) application in the Greenville County Court of Common Pleas on October 25, 2012, at case number 2012-CP-23-06891. See Christian v. South Carolina, No. 2012-CP-23-06891, available at the Greenville County Thirteenth Judicial Circuit Public Index, https://publicindex.sccourts.org/Greenville/PublicIndex/PISearch.aspx (search by case number “2012cp2306891”) (last visited Feb. 15, 2024). The PCR court dismissed Petitioner's PCR application on December 19, 2014. Id. Petitioner filed a notice of appeal. See Christian v. State, No. 2015-000123, available at the South Carolina Appellate Case Management System, https://ctrack.sccourts.org/public/publicActorSearch.do (search by case number) (last visited Feb. 15, 2024). On September 8, 2016, the South Carolina Court of Appeals denied the petition for a writ of certiorari. Id. A remittitur was issued on September 26, 2016, and entered on the PCR court's docket on September 29, 2016. Id.
Thereafter, Petitioner filed a second PCR action on October 3, 2016, in the Greenville County Court of Common Pleas at case number 2016-CP-23-05675. See Christian v. South Carolina, No. 2016-CP-23-05675, available at the Greenville County Thirteenth Judicial Circuit Public Index, https://publicindex.sccourts.org/ Greenville/PublicIndex/PISearch.aspx (search by case number “2016cp2305675”) (last visited Feb. 15, 2024). That action was dismissed on January 9, 2019. Id.
Prior Federal Court Action
Finally, the court notes that Petitioner previously filed a petition in this court pursuant to 28 U.S.C. § 2254 seeking a writ of habeas corpus in his efforts to challenge his convictions and sentence. See Christian v. Warden of Kershaw Correctional Institution, No. 8:16-cv-3252-RBH-JDA, ECF No. 24 (D.S.C. Apr. 13, 2017). That petition was served on Respondent, but, despite being given warnings about his need to do so, Petitioner failed to respond to Respondent's motion for summary judgment. Id. As a result, the petition was dismissed with prejudice for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Id. There is no indication in the Petition now under review that Petitioner received authorization from the Fourth Circuit Court of Appeals before filing this case.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se Petition filed in the above-captioned case. The review was conducted pursuant to the procedural provisions of 28 U.S.C. § 1915, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. 104-132, 110 Stat. 1214, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Further, this court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts (2012). Pursuant to this rule, a district court is “authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994).
Because Petitioner is a pro se litigant, his 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, 93-94 (2007). However, even under this less stringent standard, the Petition is subject to summary dismissal. 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, 390-91 (4th Cir. 1990).
DISCUSSION
Petitioner challenges the validity of his state court convictions and sentence, and
he seeks relief under 28 U.S.C. § 2254. Nevertheless, although § 2254 is the appropriate vehicle for Petitioner to challenge his state court convictions and sentence, relief under the statute is unavailable to Petitioner because the instant action constitutes an unauthorized successive Petition.
The AEDPA amended 28 U.S.C. § 2254 and other habeas statutes as follows:
[t]he AEDPA effected a number 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 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) (citations omitted).
To be considered “successive,” the second or subsequent petition must be an attack on the same conviction attacked in the first petition, and the first petition must have been adjudicated on the merits. Griffin v. Padula, 518 F.Supp.2d 680, 687 (D.S.C. 2007); see also Gibbs v. Warden of Broad River Corr. Inst., No. 2:21-cv-03206-JD-MGB, 2022 WL 20472335, at *3 (D.S.C. Nov. 1, 2022) (“To be considered successive, the second § 2254 habeas petition must be the second attack on the same conviction and/or sentence, and the first § 2254 habeas petition must have been finally adjudicated on the merits.”), Report and Recommendation adopted by 2023 WL 5021834 (D.S.C. Aug. 7, 2023).
Here, as noted, Petitioner previously filed a petition pursuant to 28 U.S.C. § 2254 at case number 8:16-cv-3252, and this court dismissed that action with prejudice on April 13, 2017, pursuant to Rule 41(b) for failure to prosecute. See Christian v. Warden of Kershaw Correctional Institution, No. 8:16-cv-3252-RBH, ECF No. 24 (D.S.C. Apr. 13, 2017). “A dismissal under Rule 41(b) operates as an adjudication on the merits.” Brown v. Warden, Lieber Corr. Inst., No. 1:11-cv-2472-MBS-TER, 2011 WL 7110791, at *2 (D.S.C. Dec. 19, 2011), Report and Recommendation adopted by 2012 WL 256559 (D.S.C. Jan. 27, 2012). Consequently, the present Petition, which attacks the same convictions and sentence as the first petition, is successive for purposes of 28 U.S.C. § 2244(b). See, e.g., Brown v. Lewis, No. 0:20-cv-2035-CMC-PJG, 2020 WL 4289513, at *2 (D.S.C. June 23, 2020) (“Because Petitioner's first habeas action was dismissed for failure to prosecute, that dismissal was ‘on the merits,' and this petition is successive.”), Report and Recommendation adopted by 2020 WL 4288371 (D.S.C. July 27, 2020).
Section 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. See In re Williams, 364 F.3d 235, 238 (4th Cir. 2004) (noting that the “initial determination of whether a claim satisfies” the requirements of § 2244(b)(2) “must be made by a court of appeals”); In re Fowlkes, 326 F.3d 542, 544 (4th Cir. 2003) (“Since [Petitioner] has previously filed a section 2254 motion, he may only file a successive section 2254 motion if he receives authorization from this court [the Fourth Circuit Court of Appeals] under the standard established in section 2244(b)(3)(C).”). In the absence of this required authorization, the District Court has no jurisdiction to consider the merits of a successive habeas petition. See Burton v. Stewart, 549 U.S. 147, 153 (2007) (holding that a petitioner's failure to obtain authorization to file a successive petition deprived the district court of jurisdiction to consider the successive petition). Therefore, because it appears that Petitioner did not obtain authorization from the Fourth Circuit Court of Appeals to file the instant Petition, this court does not have jurisdiction to consider the merits of Petitioner's claims and must dismiss the action in its entirety. See Johnson v. McFadden, No. 5:17-cv-01026-JMC-KDW, 2017 WL 2389957, at *2 (D.S.C. May 10, 2017) (“Because Petitioner did not obtain authorization from the Fourth Circuit Court of Appeals to file this Petition in the district court, this court does not have jurisdiction to consider it, and it is subject to summary dismissal without service on the Respondents.”), Report and Recommendation adopted by 2017 WL 2377689 (D.S.C. June 1, 2017).
RECOMMENDATION
Accordingly, it is recommended that this action be DISMISSED without prejudice and without requiring the Respondent to file an answer or return. It is further recommended that Petitioner's motion (ECF No. 2) to vacate the sentence and Petitioner's amended motion (ECF No. 18) to vacate the sentence be DENIED.
IT IS SO RECOMMENDED.