Opinion
C/A No. 6:20-197-TMC-KFM
02-14-2020
Jerome Long, Petitioner, v. Warden, Lieber Correctional Institution, Respondent.
REPORT OF MAGISTRATE JUDGE
The petitioner, proceeding pro se and in forma pauperis, brings this action 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 petition be summarily dismissed.
ALLEGATIONS
Petitioner's Conviction and Sentence
The petitioner is currently serving a sentence of life for murder imposed by the Orangeburg County General Sessions Court. See Orangeburg County Public Index, https://publicindex.sccourts.org/Orangeburg/PublicIndex/PISearch.aspx (enter the petitioner's name and E005159) (last visited February 12, 2020). The petitioner appealed, but his conviction was affirmed on January 13, 1997. South Carolina v. Long, 480 S.E.2d 62 (S.C. 1997).
The court takes judicial notice of the records in the petitioner's criminal case in the Orangeburg County General Sessions Court as well as the petitioner's several post-conviction relief actions in the Orangeburg County Court of Common Pleas. See Phillips v. Pitt Cty. 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
On December 8, 1995, the petitioner filed a post-conviction relief ("PCR") action in the Orangeburg County Court of Common Pleas at case number 1995-CP-38-00833, which was dismissed without prejudice based upon his pending direct appeal before the South Carolina Supreme Court.
Some of the petitioner's prior collateral attacks cannot be found on the public index. However, the majority can be reviewed as part of the record in the petitioner's first federal habeas action. See Long v. Ozmint, C/A No. 6:06-449-HFF-WMC (D.S.C.). This PCR action is mentioned in the return (as well as a subsequent PCR application), but the petition itself was not included.
The petitioner's first actual state PCR action was filed on February 5, 1997. See Long v. Ozmint, C/A No. 6:06-449-HFF-WMC, at doc. 12-9 pp. 10-14 (D.S.C.) (Orangeburg County Court of Common Pleas Case Number 1997-CP-38-00106). He alleged ineffective assistance of counsel, a Fifth Amendment violation, and Fourteenth Amendment violations. Id. The petition was dismissed, and the South Carolina Supreme Court denied the petition for certiorari on October 25, 2001. Id. at docs. 12-9 pp. 52-60; 12-11.
The petitioner's next PCR action was filed on November 26, 2001. See Orangeburg County Public Index (enter the petitioner's name and 2001-CP-38-01434). He argued after-discovered evidence of ineffective assistance of counsel, Brady violations, and prosecutorial misconduct. Id. The petition was dismissed on September 11, 2002. Id.
The petitioner filed another PCR action on March 15, 2003. See Long v. Ozmint, C/A No. 6:06-449-HFF-WMC, at doc. 12-14 pp. 3-7 (Orangeburg County Court of Common Pleas Case Number 2003-CP-38-00325). This petition set forth the same grounds as the previous petition filed on November 26, 2001. Id. at doc. 12-14 pp. 8-9. The petitioner then amended his petition, adding that his counsel failed to challenge the indictment. Id. The petition was dismissed as successive (although the subject matter challenge to the indictment was denied). Id. at doc. 12-14 pp. 34-38. The petitioner appealed, and the South Carolina Supreme Court denied the petition for certiorari with remittur was entered on March 3, 2006. Long v. Ozmint, C/A No. 6:06-449-HFF-WMC, at doc. 12-15.
On September 28, 2005, the petitioner filed another pro se petition for a writ of habeas corpus in the South Carolina State Court. See Long v. Ozmint, C/A No. 6:06-449-HFF-WMC, at doc. 12-16 pp. 1-10 (Orangeburg County Court of Common Pleas Case Number 2005-CP-38-01183). The petition was dismissed on January 2, 2009. Id.
The next year, on February 24, 2006, the petitioner filed a petition for relief with this court pursuant to 28 U.S.C. § 2254. See Long v. Ozmint, C/A No. 6:06-449-HFF-WMC (D.S.C.). The petition was dismissed on the merits because the petitioner did not allege a claim cognizable for federal habeas relief. Id. at docs. 23; 26. The petitioner appealed, and the Fourth Circuit Court of Appeals dismissed the appeal. Id. at docs. 28; 31; 32; see Long v. Ozmint, C/A No. 6:06-449-HFF-WMC, 2006 WL 3832988 (D.S.C. Dec. 28, 2006), appeal dismissed 231 F. App'x 258 (4th Cir. 2007).
The petitioner filed an additional § 2254 petition with this court on October 24, 2007. See Long v. Ozmint, C/A No. 6:07-3495-HFF-WMC (D.S.C.). The petition was denied as successive on March 31, 2008. Id. at docs. 7; 11; see Long v. Ozmint, 558 F. Supp. 2d 624 (D.S.C. 2008).
On October 15, 2008, the petitioner then filed a motion with the Fourth Circuit Court of Appeals, seeking authorization to file a successive § 2254 petition. In re Jerome Long, C/A No. 08-298 (4th Cir. 2008). The motion was denied on December 2, 2008. Id.
The next day, the petitioner filed an additional § 2254 petition with this court. See Long v. Ozmint, C/A No. 6:08-4142-HFF-WMC (D.S.C.). The petition was voluntarily dismissed by the petitioner on January 20, 2009. Id. at doc. 12.
The petitioner then filed another PCR action in the Orangeburg County Court of Common Pleas on February 5, 2009. See Orangeburg County Public Index (enter the petitioner's name and 2009-CP-38-00220). The PCR action was dismissed, and a remittur from the South Carolina Supreme Court was entered on December 21, 2010. Id.
The petitioner then filed another PCR action on May 5, 2010. See Orangeburg County Public Index (enter the petitioner's name and 2010-CP-38-00888). The PCR action was dismissed as successive on June 10, 2013. Id. The petitioner appealed, and his appeal was dismissed on May 5, 2014. Long v. South Carolina, C/A No. 2014-000949 (S.C. 2014).
The petitioner filed another § 2254 petition with this court on January 14, 2011. See Long v. Cartledge, C/A No. 6:11-3-TMC (D.S.C.). The petition was denied as successive on December 9, 2011. Id. at docs. 11; 21; see Long v. Cartledge C/A No. 6:11-3-TMC, 2011 WL 6122740 (D.S.C. Dec. 9, 2011).
On December 12, 2011, the petitioner filed another motion with the Fourth Circuit Court of Appeals, seeking authorization to file a successive § 2254 petition. In re Jerome Long, C/A No. 11-310 (4th Cir. 2012). The motion was denied on January 3, 2012. Id.
On June 16, 2015, the petitioner filed another motion with the Fourth Circuit Court of Appeals, seeking authorization to file a successive § 2254 petition. In re Jerome Long, C/A No. 15-204 (4th Cir. 2015). The motion was denied on July 15, 2015. Id.
After the South Carolina Department of Probation, Parole, and Pardon Services denied the petitioner's parole request on May 15, 2017, he appealed the decision to the South Carolina Administrative Law Court. See Long v. S.C. Dep't of Prob., Parole, and Pardon Servs., C/A No. 17-ALJ-15-0020-AP (S.C. Admin. L. Ct.). The Administrative Law Court affirmed the Parole Board's decision on October 19, 2017. Id. The petitioner appealed, but his appeal was dismissed for failure to comply with the South Carolina Appellate Court Rules. See Long v. S.C. Dep't of Prob., Parole, and Pardon Servs., C/A No. 2017-002279 (S.C. Ct. App. 2017).
The South Carolina Department of Probation, Parole, and Pardon Services denied another request for parole by the petitioner on July 31, 2019, and he again appealed the decision to the South Carolina Administrative Law Court. See Long v. S.C. Dep't of Prob., Parole, and Pardon Servs., C/A No. 19-ALJ-15-0038-AP (S.C. Admin. L. Ct.). The Administrative Law Court affirmed the Parole Board's decision on January 9, 2020. Id.
On December 19, 2019, the petitioner filed another PCR action arguing ineffective assistance of counsel based on the petitioner's mental health background. See Orangeburg County Public Index (enter the petitioner's name and 2019-CP-38-01714). The PCR action remains pending at this time. Id.
Petitioner's Present Action
In this case, the petitioner seeks review of his denial of parole and requested rehearing (doc. 1 at 2). He contends that he was wrongfully denied parole and that the nature of his offense and participation in community programs were not considered or addressed (id.). He appealed the decision to the Administrative Law Court, and received a denial/affirmation on January 9, 2020 (id.).
As Ground One for relief, the petitioner asserts that his due process rights were violated and he did not receive a fair hearing (id. at 6). He contends that there were no questions to him about "finding of facts" during the hearing, which violated his due process rights (id.). For relief, the petitioner seeks rehearing and the grant of parole (id. at 7).
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
As an initial matter, despite the petitioner's use of a petition form indicating he seeks relief pursuant to 28 U.S.C. § 2241, the petition is construed as one filed pursuant to 28 U.S.C. § 2254 because the petitioner is a prisoner incarcerated on a state criminal conviction. The majority trend in federal jurisprudence, including the Fourth Circuit, is that a state prisoner's challenge to the manner of execution of his sentence should be raised under § 2254. See In re Wright, 826 F.3d 774, 779 (4th Cir. 2016) (collecting cases and finding that a challenge to classification affecting parole eligibility of a state prisoner is governed by § 2254); see also Hao Qing Zhan v. Wilson, C/A No. 8:12-3052-RBH, 2013 WL 4500055, at *5 (D.S.C. Aug. 19, 2013) (finding that state prisoner challenge to parole eligibility should be evaluated pursuant to § 2254). As such, the instant petition is analyzed as a petition pursuant to 28 U.S.C. § 2254.
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 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 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 previously filed four § 2254 petitions here, one of which the court denied on the merits, one he voluntarily dismissed, and two that were dismissed as successive. See Long v. Cartledge, C/A No. 6:11-3-TMC, 2011 WL 6122740 (D.S.C. Dec. 9, 2011) (successive); Long v. Ozmint, C/A No. 6:08-4142-HFF-WMC, at doc. 12 (D.S.C.) (voluntarily dismissed); Long v. Ozmint, 558 F. Supp. 2d 627 (D.S.C. 2008) (successive); Long v. Ozmint, C/A No. 6:06-449-HFF-WMC, 2006 WL 3832988 (D.S.C. Dec. 28, 2006), appeal dismissed 231 F. App'x 258 (4th Cir. 2007) (denied on the merits); see also Henderson v. Bazzle, C/A No. 9:08-978-MBS-GCK, 2008 WL 1908535, at *3 (D.S.C. April 29, 2008) (for a petition to qualify as "successive," the prior petition must have been adjudicated on the merits (including a prior dismissal of a petition as untimely)).
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 petition be dismissed without requiring the respondent to file an answer or return. The petitioner's attention 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.
s/ Kevin F. McDonald
United States Magistrate Judge February 14, 2020
Greenville, South Carolina
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
300 East Washington Street, Room 239
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).