Opinion
Case No. 2:19-cv-1419-CMC-MGB
05-28-2019
Samuel A. Wilder, # 258295, Petitioner, v. Charles Williams, Warden, Respondent.
REPORT AND RECOMMENDATION
Samuel A. Wilder, a state prisoner proceeding pro se, seeks habeas corpus under 28 U.S.C. § 2254. (Dkt. No. 1.) This matter is before the Court for initial screening. Under 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 the petition and submit a recommendation to the District Judge. For the following reasons, the undersigned recommends summarily dismissing Wilder's petition without prejudice for lack of jurisdiction.
BACKGROUND
In 1999, Wilder was convicted in South Carolina state court of murder and possessing a firearm while committing a violent crime. (Dkt. No. 1 at 1.) He was sentenced to life in prison, plus five years for the weapon charge. (Id.) His direct appeal was dismissed. (Id. at 2.)
Wilder has sought relief in this Court before; this is his third § 2254 challenge to his convictions. The Court dismissed the first one, with prejudice, as untimely under the one-year statute of limitations in 28 U.S.C. § 2244(d). Wilder v. McCabe, No. 3:11-cv-187-MBS, 2012 WL 831484 at *3 (D.S.C. Mar. 12, 2012), reconsideration denied, 2012 WL 1565631 (D.S.C. May 2, 2012, appeal dismissed, No. 12-6829 (4th Cir. May 18, 2012) (per curiam). The Court summarily dismissed the second one, without prejudice, for lack of jurisdiction. Wilder v. Cartledge, No. 2:15-cv-1502-CMC, 2015 WL 2200498, at *1 (D.S.C. May 11, 2015), appeal dismissed, No. 15-8025 (Jan. 28, 2016). Specifically, the Court found jurisdiction lacking because the petition was "second or successive" under 28 U.S.C. § 2244, and Wilder had filed the petition without first getting proper authorization. Id.
In the present petition, Wilder asserts that he filed a new trial motion in 2006, but the state court never ruled on it. (Dkt. No. 1 at 5.) He contends the delay violates the Fourteenth Amendment's Due Process Clause. (Id.)
STANDARD OF REVIEW
This is a preliminary review of Wilder's § 2254 petition. See Rule 4, Rules Governing § 2254 Cases (requiring district courts to screen habeas petitions). The narrow question before the Court is whether it "plainly appears" that Wilder is not entitled to any relief in this Court. Id. If so, the petition must be dismissed; if not, the warden must respond. Id. Because Wilder is representing himself, the undersigned has reviewed the petition liberally. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007).
DISCUSSION
Like the second petition, Wilder's third petition plainly is successive and unauthorized. Therefore, it must be summarily dismissed.
Federal law limits federal district courts' power to hear a "second or successive" § 2254 petition. Before a district court may accept such a petition, the local court of appeals—here, the United States Court of Appeals for the Fourth Circuit—must first issue an order authorizing the district court to consider the petition. § 2244(b)(3)(A). The court of appeals will issue such an order only if it finds that the petition presents a claim that was not previously presented and meets the criteria for successive claims in § 2244(b)(2). § 2244(b)(3)(C).
For a subsequent § 2244 petition to be "successive," a prior petition must have been dismissed "on the merits." Slack v. McDaniel, 529 U.S. 473, 485-89 (2000). As mentioned, the Court dismissed Wilder's first § 2254 petition with prejudice as time-barred. That is an adjudication "on the merits" for purposes of successiveness. In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam); Quezada v. Smith, 624 F.3d 514, 519-20 (2d Cir. 2010); Griffin v. Padula, 518 F. Supp. 2d 680, 687 (D.S.C. 2007). Therefore, the present (third) § 2254 petition is successive.
That conclusion brings into play § 2244(b)(3)(A)'s pre-authorization requirement. Nothing before the Court indicates the Fourth Circuit has authorized Wilder to file his petition here. Without that authorization, this Court has no jurisdiction over his petition. See Burton v. Stewart, 549 U.S. 147, 153 (2007) (holding petitioner's failure to obtain authorization to file successive petition deprived the district court of jurisdiction over it) (citing § 2244(b)(3)(A)).
If Wilder's petition is dismissed for lack of jurisdiction, the District Judge will need to decide whether to issue a certificate of appealability. See Rule 11(a), Rules Governing § 2254 Cases. A certificate may be issued only upon a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Where a petitioner's constitutional claims have been denied on the merits, the petitioner must demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation and quotation marks omitted). Where a petitioner's constitutional claims are dismissed on procedural grounds, the petitioner must show both (1) that jurists of reason would find it debatable whether the petition states a valid claim of denial of a constitutional right, and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001). The undersigned does not see a basis for issuing a certificate in this case.
CONCLUSION
The undersigned recommends that Wilder's petition be dismissed without prejudice, and that a certificate of appealability be denied.
IT IS SO RECOMMENDED. May 28, 2019
Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
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
Post Office Box 835
Charleston, South Carolina 29402
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).