Opinion
C/A No. 8:20-cv-0886-RBH-JDA
03-02-2020
Terrell Thompson, Petitioner, v. Charles Williams, Warden, Respondent.
REPORT AND RECOMMENDATION
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 Perry 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. 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) (per curiam). 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 to a term of imprisonment of 12 years and 9 months 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 alleges he filed a post conviction relief ("PCR") action in the state court, which dismissed his PCR action in 2011 or 2012. [Id. at 2.]
In the present action, Petitioner asserts a single ground for relief, alleging false imprisonment. [Id. at 5.] According to Petitioner, he was never indicted on the first degree burglary and strong armed robbery charges because the purported date of the indictment, November 11, was a federal holiday and no one was available to pass down the indictment because the Chester County Courthouse was closed. [Id.] For his relief, Petitioner asks the Court to grant him early release from imprisonment. [Id. at 14.]
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 the Petitioner because the instant Petition is successive. This is the fourth 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 number 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 8:18-cv-2261, 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 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) (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)).
This action qualifies as a successive § 2254 action because Petitioner's prior § 2254 action filed in this Court at case number 8:18-cv-3361, pertaining to the same conviction for which he is serving his sentence, was decided on the merits. 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, the petition at case number 8:18-cv-3361 was dismissed on the merits, making the present Petition, which attacks the same conviction, 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 requiring the Respondent to file a return.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge March 2, 2020
Greenville, South Carolina
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
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).