Opinion
C. A. 8:21-cv-02355-CMC-JDA
08-19-2021
Eligha Terrill Thompson, Petitioner, v. Ms. Wallace of Kirkland Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
Eligha Terrell Thompson (“Petitioner”), proceeding pro se and in forma pauperis, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. [Doc. 1.] Petitioner is a state prisoner in the custody of the South Carolina Department of Corrections and is currently incarcerated at the Kirkland Correctional Institution. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02, D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and to submit findings and recommendations to the District Court. Upon review, the undersigned finds that the Petition filed in this case is successive and should be summarily dismissed without requiring the Respondent to file a return.
APPLICABLE LAW
A careful review has been made of the pro se Petition filed in this case under established local procedure in this judicial district and pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. 104-132, 110 Stat. 1214. Petitioner filed this action in forma pauperis under 28 U.S.C. § 1915, which authorizes the Court to dismiss a case if it is satisfied that the action fails to state a claim on which relief may be granted, is frivolous or malicious, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Further, this Court is charged with screening the Petition to determine if it plainly appears from the Petition and any attached exhibits that Petitioner is not entitled to relief in the district court. Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts (2012).
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). 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 (4th Cir. 1990). Even under the less stringent standard applicable to pro se pleadings, the Petition is subject to summary dismissal.
BACKGROUND
Petitioner alleges that he was sentenced on October 12, 2010, in the Chester County Court of General Sessions after pleading guilty to first degree burglary and strong armed robbery. [Doc. 1 at 1.] Petitioner asserts three grounds for habeas relief. First, Petitioner contends that he was convicted and sentenced pursuant to an invalid criminal indictment because the indictment was dated November 11, which was a holiday. [Id. at 5.] Second, Petitioner contends the criminal proceedings against him constituted malicious prosecution because he was never indicted pursuant to a valid criminal indictment. [Id. at 7.] Third, Petitioner contends he received ineffective assistance of counsel because his lawyer should have known that the indictment was invalid due to the holiday. [Id. at 8.] For his relief, Petitioner asks the Court to grant him early release from imprisonment. [Id. at 15.]
DISCUSSION
Although 28 U.S.C. § 2254 is the appropriate vehicle for a state prisoner to challenge a state conviction, relief under the statute is unavailable to Petitioner because the instant Petition is successive. This is at least the fifth Petition filed under § 2254 that Petitioner has submitted to this Court in his efforts to challenge his state court criminal conviction and sentence. Importantly, Petitioner previously filed a petition seeking relief under 28 U.S.C. § 2254 in this Court at case No. 8:18-cv-3361, and this Court dismissed that action with prejudice on May 16, 2019, granting summary judgment to the Respondent. See Thompson v. Davis, 8:18-cv-3361-CMC-JDA (D.S.C. May 16, 2019), Doc. 28 (adopting the Report and Recommendation at Doc. 24).
The Court takes judicial notice of Petitioner's prior habeas actions pursuant to 28 U.S.C. § 2254 at case numbers 8:20-cv-0886, 8:18-cv-3361, 8:18-cv-3030, and 8:18-cv- 0541. It is appropriate for the District Court to take judicial notice of Petitioner's prior cases. See Philips v. Pitt Cty. 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.'”).
On April 24, 1996, the AEDPA amended 28 U.S.C. § 2254 and other habeas statutes. Specifically,
[t]he 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 omitted) (citing Felker v. Turpin, 518 U.S. 651 (1996)). 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. § 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” § 2244(b).Felker, 518 U.S. at 657 (citing § 2244(b)(3)(c); §§ 2244(b)(3)(B), (D)).
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. See In re Williams, 444 F.3d 233, 236 (4th Cir. 2006). Here, Petitioner's prior § 2254 action filed at case No. 8:18-cv-3361 attached the same conviction that is the subject of the present Petition. Because the prior petition was dismissed on the merits, the present Petition is successive for purposes of 28 U.S.C. § 2244(b).
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 United States v. Winestock, 340 F.3d 200, 205-06 (4th Cir. 2003). Because it appears that Petitioner did not obtain authorization from the Fourth Circuit Court of Appeals to file the Petition, this Court does not have jurisdiction to consider it. Id.
RECOMMENDATION
Accordingly, it is recommended that the Petition in this case be DISMISSED without prejudice and without requiring the Respondent to file a return.
IT IS SO RECOMMENDED.
Petitioner's attention is directed to the important notice on the next page.
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, Suite 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).