Opinion
C. A. 4:20-3777-BHH-TER
06-29-2021
ERVOM LOPEZ, Petitioner, v. WARDEN SCOTT LEWIS. Respondent.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
Petitioner, Ervin Lopez (“Petitioner/Lopez”), is an inmate in the custody of the South Carolina Department of Corrections (SCDC). Petitioner, through counsel, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 27, 2020. Respondent filed a motion for summary judgment on December 29, 2020. Petitioner filed a response on February 18, 2021, and Respondent filed a reply on March 24, 2021.After the court's order of June 21, 2021, instructing the parties to brief the issue of whether or not the petition is successive, both parties filed a memorandum on the issue on June 28, 2021. (ECF Nos. 19 and 20).
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
The issue of successiveness of a habeas petition may be raised by the court sua sponte. See Rodriguez v. Johnson, 104 F.3d 694, 697 n.1 (5th Cir. 1997); Davis v. McFadden, C/A No. 0:14-2662-RMG, 2014 WL 5305931, at *4 (D.S.C. Oct. 15, 2014) (adopting and incorporating Report and Recommendation).
Petitioner argues in the supplemental memorandum that the habeas petition is not successive. Specifically, Petitioner argues that because both Claims I and II of the current habeas petition were presented to the South Carolina Supreme Court in his Butler petition, because both of these claims are not identical to any claim raised in the prior habeas petition and Claim III is a claim of innocence not previously presented, the current petition is not successive.
In the Respondent's supplemental memorandum, Respondent argues that in comparing the indictment numbers and conviction, this is an action challenging the same judgment as the prior §2254 action (C/A No.; 4-13-28720BHH). Respondent asserts that the issues raised in this habeas petition are identical to issues raised in the previous petition, have been considered and subject to a summary judgment decision by the Untied States District Court, and there is no new rule of Constitutional law presented by the Petitioner that was not previously available or available to be discovered prior to the first habeas petition. Respondent asserts a search of records reveals that there was not an order authorizing the filing of a second or successive application by the Fourth Circuit. Thus, Respondent argues that the petition is successive, Petitioner lacks authorization from the Fourth Circuit to file the current petition, and therefore, the court is without jurisdiction.
Petitioner has filed a previous § 2254 petition in this Court challenging the same conviction and sentence challenged herein: kidnapping, strong armed robbery, assault and battery of a high and aggravated nature, and attempted grand larceny of a motor vehicle. This Court may take judicial notice of filings in Petitioner's prior §2254 case, including the Order adopting the Report and Recommendation and granting summary judgment in favor of the Respondent and the opinion of the Fourth Circuit dismissing the appeal. See Lopez v. Cartledge, No. 4:13-2872-BHH, 2015 WL 5554562, at *17 (D.S.C. Sept. 21, 2015), appeal dismissed, No. 15-7653, 642 Fed.Appx. 287, 2016 WL 1259696 (4th Cir. Mar. 31, 2016). Therefore, the instant Petition is successive in accordance with §2244(b).
The standard for determining whether a petition is successive appears in Slack v. McDaniel, 529 U.S. 473, 485-89 (2000). A successive habeas petition cannot be filed without first obtaining pre-filing authorization from the court of appeals. 28 U.S.C. 2244(b)(3)(A); In re Williams, 444 F.3d 233, 235 (4th Cir. 2006). To be considered successive, the second habeas petition must be the second attack of the same conviction and the first habeas petition must have been finally adjudicated on the merits. See Williams, 444 F.3d at 236. A summary judgment grant in favor of respondent is considered an adjudication on the merits. See White v. U.S., 53 F.Supp.3d 830, 834 (D.S.C. 2014); Because the instant Petition is the second attack of the same convictions and the first petition's adjudication is considered to be on the merits, the instant Petition is successive. Therefore, since Petitioner did not first obtain prefiling permission from the Fourth Circuit Court of Appeals to file this successive § 2254 petition, this court lacks jurisdiction over Petitioner's instant Petition, and thus, the Petition is subject to dismissal.
Respondent asserts that after a review of records of the Fourth Circuit, there has been no grant of permission to file a successive § 2254 from the Fourth Circuit Court of Appeals. Petitioner has not asserted or shown that there has been a grant of permission from the Fourth Circuit Court of Appeals authorizing this Court to consider a successive petition from Petitioner.
The court notes that a claim of actual innocence raised in a successive habeas petition still requires authorization from the Fourth Circuit before this court may consider it. See Richardson v. Thomas, 930 F.3d 587, 594 (4th Cir. 2019) (holding that a court of appeals must engage in the actual innocence inquiry under § 2244(b)(2)).
CONCLUSION
Based on the above reasoning, it is recommended that this habeas petition be dismissed as successive and unauthorized.
Any outstanding motions are deemed moot.