Opinion
C. A. 1:24-1132-CMC-SVH
06-28-2024
Johnnie Frazier, Petitioner, v. Warden Jackson, Respondent.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
Johnnie Frazier (“Petitioner”), proceeding pro se, is a state prisoner incarcerated at Lee Correctional Institution. [ECF No. 22 at 1]. He filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends the district judge dismiss the petition without prejudice.
I. Factual and Procedural Background
This is not Petitioner's first petition for habeas relief. In Frazier v. Warden of Lieber Correctional Institution, C. A.No. 1:18-1511-CMC (“Frazier I”), Petitioner filed a petition seeking habeas relief based on the same convictions as he argues in the present case. He brought this action styled as a “writ of mandamus,” arguing his
A district court may take judicial notice of materials in the court's own files from prior proceedings. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that the most frequent use of judicial notice is in noticing the content of court records); Fletcher v. Bryan, 175 F.2d 716, 717 (4th Cir. 1949).
appellate defender was inefective in the fact that she did not broach the subject of warnts and indictments 1st degree burglery #404-16-11-311 - armed robery #407-16-11-330(A) - possession of a firearm in the commission of a violent crime #405-16-23-490[.] These issues were appealeable and Miss Wanda carter did not broach those subjects but I in a pro sea breaf did. Witch was brought up with a pro sea direct appeal and a request for a rehearing so it would have been preserved for further review by the high courts.[ECF No. 1 at 1(errors in original)]. On March 11, 2024, undersigned advised Petitioner that the court could not provide mandamus relief in his state case, but provided him an opportunity to file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 for the court's consideration. On May 31, 2024, Petitioner filed a petition pursuant to § 2254 [ECF No. 20],the allegations of which revealed he is challenging the same convictions as in Frazier I.
Petitioner did not sign the petition docketed at ECF No. 20.
The details of Petitioner's criminal convictions are set forth fully in Frazier I at ECF Nos. 49 and 62.
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the AntiTerrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleadings to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dept of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
B. Analysis
Under the AEDPA, an individual may not file a second or successive petition for a writ of habeas corpus under 28 U.S.C. § 2254 or a motion to vacate sentence under 28 U.S.C. § 2255 without first receiving permission to do so from the appropriate court of appeals. In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997). For a subsequent petition for habeas corpus to be considered second or successive, the petitioner must challenge the same conviction he challenged in the prior petition, and the prior petition must have been adjudicated on the merits. Griffin v. Padula, 518 F.Supp.2d 680, 687 (D.S.C. 2007). Notably, 28 U.S.C. § 2244(b)(3)(A) requires a prospective applicant to file with the court of appeals a motion for leave to file a second or successive habeas application in the district court. 28 U.S.C. § 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 [28 U.S.C. § 2244(b)].” 28 U.S.C. § 2244(b)(3)(B)-(D). This court cannot consider Petitioner's second or successive § 2254 petition unless he has obtained a PreFiling Authorization from the Fourth Circuit under 28 U.S.C. § 2244(b)(3). See In re Williams, 330 F.3d 277 (4th Cir. 2003); In re Fowlkes, 326 F.3d 542 (4th Cir. 2003).
The instant petition is successive. Petitioner challenges the same convictions he challenged in Frazier I, which was adjudicated on the merits. In the absence of a showing that Petitioner obtained authorization from the Fourth Circuit to file a successive habeas petition in the district court, this court lacks jurisdiction to consider it.
III. Conclusion and Recommendation
Accordingly, the undersigned recommends the petition be dismissed without prejudice and without requiring Respondent to file an answer or return.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”