Opinion
C. A. 4:21-3667-BHH-TER
12-06-2021
Darrell Burgess, #265544, Petitioner, v. Warden, Lee Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
Petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2254 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. The Petition is subject to dismissal because it is successive and presented without an order from the Fourth Circuit Court of Appeals authorizing this Court to consider a successive petition.
DISCUSSION
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings and motion to proceed in forma pauperis pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted 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, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). 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 currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).
Furthermore, 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 of Rules Governing Section 2254 Cases in the United States District Courts. Following the required initial review, it is recommended that the Petition submitted in this case should be summarily dismissed due to being successive.
Petitioner has filed a previous § 2254 petition in this Court challenging the same conviction and sentence challenged herein: convictions from February 1, 2008 with sentences of life imprisonment without possibility of parole and five years imprisonment, which were two counts of murder and one count of possession of a firearm during commission of a violent offense. (ECF No. 1); Burgess v. Reynolds, No. 4:15-cv-4361-BHH. Grounds argued in the instant Petition are: insufficient evidence where a witness to the murder pointed at Petitioner but there was allegedly no physical evidence and indictment differed from evidence offered at trial. (ECF No. 1 at 5-7). This Court may take judicial notice of filings in Petitioner's prior § 2254 case, including the Order adopting the Report and Recommendation and dismissing the Petition with prejudice for failure to prosecute pursuant to Fed. R. Civ. Proc. R. 41(b). See Slaughter v. Wright, 135 F.2d 613, 615 (4th Cir. 1943). The instant Petition is therefore successive, and is subject to summary dismissal.
While the Petition mentions a guilty plea to a trafficking cocaine charge on a different date with different proceedings, it is evident from the Petition's listed dates of sentencing, lengths of sentences, and argued grounds that Petitioner is contesting only the counts from his trial: two counts of murder and one count of possession of a weapon during commission of violent offense. (ECF No. 1). Further, Petitioner was sentenced to seven years on the drug charge with credit for time served from a September 2005 arrest date. It appears Petitioner fully served his seven year sentence and moreover, public records indicate Petitioner never filed a direct appeal or a PCR regarding the drug charge and would be more than a decade outside of the statute of limitations.
The standard for determining whether a petition is successive appears in Slack v. McDaniel, 529 U.S. 473, 485-89 (2000). A successive habeas petition cannot be filed without first obtaining pre-filing authorization from the court of appeals. 28 U.S.C. 2244(b)(3)(A); In re Williams, 444 F.3d 233, 235 (4th Cir. 2006). To be considered successive, the second habeas petition must be the second attack of the same conviction and the first habeas petition must have been finally adjudicated on the merits. See Williams, 444 F.3d at 236. Petitioner's prior dismissal was “pursuant to Rule 41(b) with prejudice, which operates as an adjudication on the merits.” Brown v. McCabe, No. 4:12-1745-TLW-TER, 2012 WL 5380662, at *2 (D.S.C. Sept. 27, 2012), report and recommendation adopted, 2012 WL 5381146 (D.S.C. Oct. 31, 2012). Because the instant Petition is the second attack of the same convictions and the first petition's adjudication is considered to be on the merits, the instant Petition is successive. Therefore, since Petitioner did not first obtain permission from the Fourth Circuit Court of Appeals to file this successive § 2254 Petition, this court does not have jurisdiction over Petitioner's instant Petition, and thus, the Petition is subject to summary dismissal.
A review of public records of the Fourth Circuit show that there has been no grant of permission to file a successive § 2254 from the Fourth Circuit Court of Appeals. There is no order from the Fourth Circuit Court of Appeals authorizing this Court to consider a successive petition from Petitioner.
RECOMMENDATION
Accordingly, it is recommended that the § 2254 Petition in this case be dismissed without prejudice and without requiring the respondent to file a return, as successive and unauthorized.
IT IS SO ORDERED.
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 2317
Florence, South Carolina 29503
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).