Opinion
C. A. 8:22-cv-00349-JMC-JDA
02-22-2022
Spencer Utsey, Petitioner, v. Warden Wallace, Respondent
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
Spencer Utsey (“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.
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. See 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). 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 (4th Cir. 1990).
BACKGROUND
As noted, Petitioner commenced this action by filing a petition under 28 U.S.C. § 2254 for writ of habeas corpus on the standard court form [Doc. 1] along with a handwritten attachment detailing a statement of his claims [Doc. 1-2]. The Court construes both documents together as the Petition filed in this matter. The Court has carefully reviewed the Petition and the records in Petitioner's state court proceedings and prior actions filed in this Court.
The Court takes judicial notice of the records filed in Petitioner's state court actions and his prior habeas actions filed in this Court at case numbers 5:19-cv-3218-JMC-JDA, 5:19-cv-02873-JMC-JDA, and 8:13-cv-01433-JMC-JDA. 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.'”).
Petitioner makes the following allegations. On June 15, 1999, Petitioner was convicted by a jury of armed robbery in the Bamberg County Court of General Sessions at case number 99-GS-05-137. [Doc. 1 at 1.] Petitioner was sentenced to a term of thirty years of imprisonment. [Id.] Petitioner filed a direct appeal and the South Carolina Court of Appeals affirmed Petitioner's conviction and sentence on October 4, 2000. [Id. at 2.] On June 21, 2001, the South Carolina Supreme Court denied Petitioner's application for writ of certiorari. [Id.] Petitioner alleges that he filed numerous post-conviction relief (“PCR”) applications in the state court, but they were each dismissed. [ Id. at 2-4.]
By way of further background, the undersigned notes that the Court previously summarized the procedural history of Petitioner's conviction, sentence, appeals, and state PCR actions as follows:
Petitioner was found guilty after a June 15, 1999, jury trial on a charge of armed robbery and was sentenced to 30 years in prison. Petitioner filed a direct appeal on September 7, 2000. The South Carolina Court of Appeals affirmed the conviction on November 20, 2000. Petitioner filed a petition for a rehearing on December 5, 2000, which was denied on January 30, 2001. Petitioner filed a petition for writ of certiorari to the South Carolina Supreme Court on April 2, 2001. The Supreme Court denied the petition on June 21, 2001, and issued the remittitur the next day. Petitioner filed a pro se application for Post Conviction Relief (“PCR”) on April 9, 2002. After an evidentiary hearing on January 9, 2003, the PCR court filed an order of dismissal on March 3, 2003. Petitioner did not appeal the dismissal. Petitioner filed three more PCR applications-on April 18, 2008, December 6, 2011, and November 19, 2012-each of which was denied as being untimely for having been filed past the statute of limitations.Utsey v. McCall, No. 8:13-cv-01433-JMC (D.S.C. Sept. 24, 2014), Doc. 45 at 2 (citations to the record omitted).
Petitioner asserts the following grounds in the present action. First, he contends that his PCR counsel abandoned his application. [Doc. 1-2 at 1.] Second, he contends that counsel was ineffective in failing to seek appellate review of the dismissal of his PCR action and in failing to file a writ of certiorari. [Id.] Third, he contends the State of South Carolina did not deny the issues raised by Petitioner and so they are deemed admitted. [Id. at 2.] Fourth, he contends he was incompetent at the time he was convicted and sentenced and that he was falsely accused. [Id. at 3.] Fifth, he contends that Judge Newman committed fraud in deciding his case. [Id. at 5.]
For his relief, Petitioner seeks his immediate release from prison and that his conviction and sentence be vacated. [Doc. 1 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 the third Petition filed under § 2254 that Petitioner has submitted to this Court in his efforts to challenge the constitutionality of his state court criminal conviction and sentence.
Petitioner's first petition seeking relief under 28 U.S.C. § 2254 was opened in this Court on May 31, 2013, and was dismissed with prejudice on September 24, 2014, as the Court granted summary judgment to the Respondent. See Utsey v. McCall, 8:13-cv-1433-JMC (D.S.C. Sept. 24, 2014), Doc. 45 (adopting the Report and Recommendation at Doc. 41).
Petitioner's second petition seeking relief under 28 U.S.C. § 2254 was opened in this Court on November 12, 2019, and was dismissed without prejudice on October 13, 2020, as this Court concluded it lacked jurisdiction because the action was an unauthorized successive habeas petition. See Utsey v. Warden, 8:19-cv-3218-JMC (D.S.C. Oct. 13, 2020), Doc. 19 (adopting the Report and Recommendation at Doc. 12). The Fourth Circuit Court of Appeals dismissed Petitioner's appeal in an unpublished decision on April 23, 2021, and the United States Supreme Court denied a petition for writ of certiorari on October 4, 2021. Id., Docs. 27; 31.
The present Petition is subject to summary dismissal for the same reasons Petitioner's prior action was dismissed at case number 8:19-cv-3218. On April 24, 1996, the AEDPA amended 28 U.S.C. § 2254 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) (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 first § 2254 action filed in this Court, pertaining to the same conviction for which he is serving his sentence, was decided on the merits. See Utsey v. McCall, 8:13-cv-1433-JMC (D.S.C. Sept. 24, 2014), Doc. 45 (granting Respondent's motion for summary judgment and denying Petitioner's petition for writ of habeas corpus). 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 initial petition 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 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).