Opinion
C. A. 8:23-cv-6104-TMC-JDA
12-05-2023
Abram D. Braveboy, Petitioner, v. Steven Duncan, Respondent.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
Abram D. Braveboy (“Petitioner”), proceeding pro se, brings this habeas corpus action under 28 U.S.C. § 2254. Petitioner is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is presently confined at the Manning Correctional Institution in Columbia, South Carolina. [Doc. 1 at 1.] Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Judge. For the reasons below, this action is subject to summary dismissal.
BACKGROUND
Allegations from the Petition
Petitioner commenced this action by filing a Petition under 28 U.S.C. § 2254 for writ of habeas corpus [Doc. 1] along with supporting documents [Doc. 1-1] and a “Motion to Supplement the Appendix” [Doc. 2]. Petitioner alleges he was convicted on June 4, 2002, in the Richland County Court of General Sessions for armed robbery, attempted armed robbery, and conspiracy to commit armed robbery at case numbers 2001-GS-40-6473, -6474, -6475, -6652, -6653, -6656, and -6715. [Doc. 1 at 1.] He was sentenced the same day to a term of imprisonment of 35 years. [Id.] Petitioner asserts the following ground in his Petition, which is provided substantially verbatim:
GROUND ONE: Malicious deliberate denial of June 7, 2002[,] direct appeal inordinate delay prejudicial of extraordinary rare (21) years and counting . . .[Id. at 5 (capitalization corrected).] For his relief, Petitioner requests his “unconditional release.” [Id. at 15.]
State Court Procedural History
By further way of background, the undersigned notes the following procedural history from Petitioner's state court cases relevant to the Petition filed in this case.
The Court takes judicial notice of Plaintiff's state court actions including the original criminal proceedings, his applications for post-conviction relief, and his appeals from those actions. See Philips v. Pitt Cnty. 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.'”).
Conviction and Sentence
As noted, Petitioner pled guilty to armed robbery, attempted armed robbery, and conspiracy to commit armed robbery, and on June 4, 2002, he was sentenced to 35 years' imprisonment. See South Carolina v. Braveboy, Nos. 2001-GS-40-6475, 2001-GS-40-6474, 2001-GS-40-6656, 2001-GS-40-6473, 2001-GS-40-6715, 2001-GS-40-6653, 2001-GS-40-6652, available at the Richland County Fifth Judicial Circuit Public Index, https://publicindex.sccourts.org/Richland/PublicIndex/PISearch.aspx (search by case numbers listed above) (last visited Dec. 5, 2023). Petitioner did not file a direct appeal.
Post-Conviction Relief Actions
Petitioner then filed his first post-conviction relief (“PCR”) application in the Richland County Court of Common Pleas on May 4, 2004. See Braveboy v. South Carolina, No. 2004-CP-40-02246, available at the Richland County Fifth Judicial Circuit Public Index, https://publicindex.sccourts.org/Richland/PublicIndex/PISearch.aspx (search by case number “04cp4002246”) (last visited Dec. 5, 2023). The PCR Court dismissed Petitioner's PCR application on November 16, 2005, finding the action was time-barred under the applicable statute of limitations. Id.
Petitioner filed a second PCR action in the Richland County Court of Common Pleas at case number 2005-CP-40-02867 on June 16, 2005. See Braveboy v. South Carolina, No. 2005-CP-40-02867, available at the Richland County Fifth Judicial Circuit Public Index, https://publicindex.sccourts.org/Richland/PublicIndex/PISearch.aspx (search by case number “2005cp4002867”) (last visited Dec. 5, 2023). By order dated June 29, 2005, the PCR action at case number 2005-CP-40-02867 was merged with the action at case number 2004-CP-40-2246. Id.
Thereafter, Petitioner filed a PCR action on May 25, 2010, in the Richland County Court of Common Pleas at case number 2010-CP-40-03450. See Braveboy v. South Carolina, No. 2010-CP-40-03450, available at the Richland County Fifth Judicial Circuit Public Index, https://publicindex.sccourts.org/Richland/PublicIndex/PISearch.aspx (search by case number “2010cp4003450”) (last visited Dec. 5, 2023). That action was dismissed on January 18, 2011. Id.
Finally, Petitioner filed a PCR action on September 29, 2016, in the Richland County Court of Common Pleas at case number 2016-CP-40-05602. See Braveboy v. South Carolina, No. 2016-CP-40-05602, available at the Richland County Fifth Judicial Circuit Public Index, https://publicindex.sccourts.org/Richland/PublicIndex/PISearch.aspx (search by case number “2016cp4005602”) (last visited Dec. 5, 2023). That action was dismissed on May 18, 2021, on numerous grounds including that the action was time-barred, successive, and barred by res judicata. Id.
Prior Federal Court Actions
Finally, the Court notes that Petitioner previously filed multiple actions in this Court pursuant to 28 U.S.C. § 2254 seeking a writ of habeas corpus and pursuant to 42 U.S.C. § 1983 in his efforts to challenge his conviction and sentence at case numbers 8:21-cv-2795, 8:20-cv-3486, 3:20-cv-3211, and 8:11-cv-2075. The Court will address certain of these actions in the discussion below.
The undersigned further notes that Plaintiff has apparently sought relief under the federal habeas corpus statute in other district courts. See, e.g., Braveboy v. James, No. 2:20-cv-10609-JGB-KES, 2020 WL 7342756, at *4 (C.D. Cal. Dec. 14, 2020) (dismissing the petition without prejudice based on improper venue); Braveboy v. James, No. 2:21-cv-02110-JGB-KES, 2021 WL 1214770, at *2 (C.D. Cal. Mar. 30, 2021) (dismissing the petition as an unauthorized second or successive petition under § 2254 and because venue was improper in that district).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in the above-captioned case. The review was conducted pursuant to the procedural provisions of 28 U.S.C. § 1915, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. 104-132, 110 Stat. 1214, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Further, this Court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts (2012). Pursuant to this rule, a district court is “authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994).
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, 390-91 (4th Cir. 1990).
DISCUSSION
Petitioner appears to challenge the validity of his state court conviction and sentence, and he seeks habeas relief under 28 U.S.C. § 2254. Nevertheless, although § 2254 is the appropriate vehicle for Petitioner to challenge his state court conviction and sentence, relief under the statute is unavailable to Petitioner because the instant action constitutes an unauthorized successive Petition.
As noted, Petitioner previously filed multiple habeas actions in this Court in his efforts to challenge his state court criminal conviction and sentence. Significantly, Petitioner filed a habeas action pursuant to § 2254 at case number 8:11-cv-2075, and this Court dismissed that action with prejudice on January 6, 2012, finding the action was time-barred under the AEDPA's one-year statute of limitations. See Braveboy v. Cartledge, No. 8:11-cv-2075-TMC, 2012 WL 33219, at *3 (D.S.C. Jan. 6, 2012).
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). 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. 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 v. Turpin, 518 U.S. 651, 657 (1996) (citations omitted).
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. Griffin v. Padula, 518 F.Supp.2d 680, 687 (D.S.C. 2007); see also Gibbs v. Warden of Broad River Corr. Inst., No. 2:21-cv-03206-JD-MGB, 2022 WL 20472335, at *3 (D.S.C. Nov. 1, 2022) (“To be considered successive, the second § 2254 habeas petition must be the second attack on the same conviction and/or sentence, and the first § 2254 habeas petition must have been finally adjudicated on the merits.”), Report and Recommendation adopted by 2023 WL 5021834 (D.S.C. Aug. 7, 2023).
Here, the petition at case number 8:11-cv-2075 was dismissed with prejudice as time-barred, making the present Petition, which attacks the same conviction and sentence, successive for purposes of 28 U.S.C. § 2244(b). See, e.g., Griffin, 518 F.Supp.2d at 687 (“Dismissal of a § 2254 petition for failure to comply with the one-year statute of limitations constitutes an adjudication on the merits that renders future petitions under § 2254 challenging the same conviction second or successive petitions under § 2244(b).” (quotation marks and citations omitted)); Anderson v. S.C. Prob. & Parole, No. 8:16-cv-03941-MGL, 2017 WL 990592, at *1 (D.S.C. Mar. 15, 2017) (noting dismissal of a § 2254 action as time-barred is an adjudication on the merits that makes subsequent habeas actions successive).
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 In re Williams, 364 F.3d 235, 238 (4th Cir. 2004) (noting that the “initial determination of whether a claim satisfies” the requirements of § 2244(b)(2) “must be made by a court of appeals”); In re Fowlkes, 326 F.3d 542, 544 (4th Cir. 2003) (“Since [Petitioner] has previously filed a section 2254 motion, he may only file a successive section 2254 motion if he receives authorization from this court [the Fourth Circuit Court of Appeals] under the standard established in section 2244(b)(3)(C).”). In the absence of this required authorization, the District Court has no jurisdiction to consider the merits of a successive habeas petition. See Burton v. Stewart, 549 U.S. 147, 153 (2007) (holding that a petitioner's failure to obtain authorization to file a successive petition deprived the district court of jurisdiction to consider the successive petition). Therefore, because it appears that Petitioner did not obtain authorization from the Fourth Circuit Court of Appeals to file the instant Petition, this Court does not have jurisdiction to consider the merits of Petitioner's claims and must dismiss the action in its entirety.
RECOMMENDATION
Accordingly, it is recommended that this action be DISMISSED without prejudice and without requiring the Respondent to file an answer or return. It is further recommended Petitioner's motion [Doc. 2] to supplement the appendix be DENIED.
IT IS SO RECOMMENDED.
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).