Opinion
2:21-cv-03720-JFA-MGB
12-16-2021
Robert Earl Dillard, #220045, Petitioner, v. Warden Williams, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Robert Earl Dillard (“Dillard”), a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), the undersigned is authorized to review the petition and submit a recommendation to the assigned United States District Judge. For the reasons discussed herein, the undersigned finds that the Court lacks jurisdiction over the petition and therefore recommends that this case be summarily dismissed, without prejudice and without requiring the Warden to respond.
BACKGROUND
On March 2, 1995, a Pickens County jury convicted Dillard of two counts of murder, resulting in two consecutive life sentences. (Dkt. No. 1 at 1; see also Indictment Nos. 1994-GS-39-1490, -1491.) The South Carolina Supreme Court later affirmed Dillard's convictions and sentence on February 11, 1997. (Dkt. No. 1 at 2.) Since then, Dillard has filed several applications for post-conviction relief, as well as petitions for writs of mandamus and habeas corpus, in state court. (See generally Dkt. No. 1-1.) The state courts have denied him relief.
The undersigned takes judicial notice of the records filed in Dillard's underlying state actions and related federal cases. See https://publicindex.sccourts.org/Pickens/PublicIndex/PISearch.aspx (last visited December 15, 2021); see also 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”); Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (explaining that a federal court may take judicial notice of the contents of its own records, as well as those records of other courts); Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009) (noting that the court may also take judicial notice of factual information located in postings on government web sites).
Dillard has likewise sought relief in this Court, as this is his fifth attempt challenging his murder convictions and sentence pursuant to 28 U.S.C. § 2254. The Court dismissed the first habeas petition, with prejudice, as untimely under the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). Dillard v. Warden, Perry Corr. Inst., No. 8:07-cv-1533-JFA, 2008 WL 4200315, at *3 (D.S.C. Sept. 2, 2008), appeal dismissed, 312 Fed.Appx. 543 (4th Cir. 2009) (per curiam), cert. denied, 558 U.S. 884 (2009), cert. reh'g denied, 558 U.S. 1101 (2009). The Court summarily dismissed the second, third, and fourth petitions, without prejudice, for lack of jurisdiction. Dillard v. Cartledge, No. 2:15-cv-3604-JFA (D.S.C. Feb. 11, 2016); Dillard v. Lewis, No. 2:18-cv-3103-JFA (D.S.C. July 29, 2019); and Dillard v. Lewis, No. 2:19-cv-2393-JFA (D.S.C. Jan. 3, 2020). In each case, the Court found jurisdiction lacking because the petition was “second or successive” under 28 U.S.C. § 2244, and Dillard had filed the petition without first getting proper authorization from the Fourth Circuit Court of Appeals.
The scope of Dillard's present habeas action is somewhat difficult to ascertain, as he asserts only one cursory ground for relief: “actual innocence, trial was fundamental[ly] unfair.” (Dkt. No. 1 at 5.) He asks for “habeas relief, including a new trial, etc.” (Id. at 15.) Attached to this bare petition are records from Dillard's most recent habeas petition before the South Carolina Supreme Court, including the state court's final order denying the same on September 10, 2021. (Dkt. No. 1-1 at 3-23.) The attachments also include what appears to be an “Amended Petition for a Writ of Habeas Corpus” challenging the South Carolina Department of Probation, Parole and Pardon Services' (“DPPPS”) recent denial of Dillard's parole. (Id. at 1-2.) It is unclear exactly how these documents fit into the instant case.
To clarify, the attached “amended petition” (Dkt. No. 1-1 at 1) challenging the parole board's decision noticeably predates the present petition (Dkt. No. 1). Accordingly, it does not appear that Dillard intends for this supplemental attachment to supersede the current petition (Dkt. No. 1) or serve as a pleading in the instant case.
STANDARD OF REVIEW
Under the established local procedure in this judicial district, a careful review has been made of the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”); 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); and Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
The narrow question before the Court is whether it “plainly appears” that Dillard is not entitled to any relief. Rule 4, Rules Governing § 2254 Cases. If so, his petition must be dismissed; if not, the Warden must respond. Id. Because Dillard is a pro se litigant, his petition is accorded liberal construction. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon, 574 F.2d at 1151. Even under this less stringent standard, however, the Court cannot 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). Such is the case here.
DISCUSSION
Petitions filed pursuant to 28 U.S.C. § 2254 are subject to a successive authorization requirement under § 2244(b), which states that a petitioner must first obtain authorization from the appropriate court of appeals before filing a second or successive § 2254 application. See 28 U.S.C. § 2244(b)(3)(A); see also Rule 9, Rules Governing § 2254 Cases. 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. See Griffin v. Padula, 518 F.Supp.2d 680, 687 (D.S.C. 2007) (referencing Slack v. McDaniel, 529 U.S. 473 (2000)); see also McClellan v. Warden of Lee Corr. Inst., No. 9:20-cv-1941-SAL-MHC, 2020 WL 8922899, at *4 (D.S.C. July 21, 2020), adopted by, 2021 WL 1105041 (D.S.C. Mar. 23, 2021) (noting that a petition is successive and requires authorization from the appropriate appellate court even if the petitioner is attempting to raise grounds not raised in the original petition).
As noted above, Dillard's first § 2254 petition was adjudicated on the merits and dismissed with prejudice, such that any subsequent § 2254 petition challenging the same convictions and/or sentence constitutes a second or successive petition under § 2244(b). See Griffin, 518 F.Supp.2d at 687 (explaining that dismissal based on the one-year statute of limitations is considered an adjudication on the merits for purposes of designating subsequent § 2254 petitions as successive). Consequently, like his second, third, and fourth petitions, Dillard cannot pursue the instant petition without first receiving permission from the appropriate court of appeals. 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 Fowlkes 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).”).
Dillard does not indicate that he has obtained permission from the Fourth Circuit Court of Appeals to file this successive petition, and a records check does not reflect any such authorization. In the absence of this required authorization, a 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 petitioner's failure to obtain authorization to file a successive petition deprived the district court of jurisdiction to consider the successive petition). Because the present § 2254 petition constitutes an unauthorized successive petition, the Court cannot consider the merits of Dillard's claims and must therefore dismiss this action in its entirety.
Although the undersigned cannot consider the merits of the present petition, it is worth noting-in an abundance of caution-that to the extent Dillard intended for the Court to consider the denial of his parole as part of this action, his claims are based on faulty legal premises. Specifically, the one-page document asserts that DPPPS violated Dillard's due process rights by improperly denying his parole based on the following factors: nature and seriousness of the current offense; indication of violence in this or previous offense; use of deadly weapon in this or previous offense; and criminal record indicates poor community adjustment. (Dkt. No. 1-1 at 1.) Dillard suggests that “these questions” are “beyond the jurisdiction of the parole board” and fall under the purview of the court. (Id.) Contrary to Dillard's contentions, however, these very considerations are part of DPPPS's statutorily-prescribed authority to determine parole eligibility. See S.C. Code § 24-21-610 et seq. Indeed, this Court has found no due process violations where the denial letter clearly states, as it does here (id. at 2), that DPPPS considered the factors outlined in S. C. Code § 24-21-640 and the fifteen factors published in its parole form. See, e.g., Thompson v. Warden of Tyger River Corr. Inst, No. 9:21-cv-00631-TMC-MHC, 2021 WL 4556302, at *5 (D.S.C. Sept. 17, 2021), adopted, 2021 WL 4555759 (D.S.C. Oct. 5, 2021), appeal docketed, No. 21-7582 (4th Cir. Nov. 10, 2021); Bagley v. Dunlap, No. 5:16-cv-3924-TLW-KDW, 2017 WL 3916989, at *8 (D.S.C. May 31, 2017), adopted, 2017 WL 3896377 (D.S.C. Sept. 6, 2017); see also Cooper v. S.C. Dep't of Prob., Parole, and Pardon Servs., 661 S.E.2d 106, 111 (S.C. 2008). Moreover, Dillard should keep in mind that parole eligible inmates have no protected right to parole, only the right to a parole hearing-which apparently occurred here. (Dkt. No. 1-1 at 1-2.) See James v. S.C. Dep't of Prob., Parole and Pardon Servs., 376 S.C. 392, 395 (Ct. App. 2008); Furtick v. S.C. Dep't of Prob., Parole, and Pardon Servs., 352 S.C. 594, 576 S.E.2d 146 (2003). Thus, Dillard's allegations regarding DPPPS's denial of his parole would likely be subject to summary dismissal.
CONCLUSION
The undersigned therefore RECOMMENDS that the Court summarily dismiss the petition, without prejudice and without requiring the Warden to respond.
IT IS SO RECOMMENDED.
The parties' attention is directed to an important notice on the following 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).