Opinion
C/A No. 4:19-111-MGL-TER
02-06-2019
Jamie Goss, #294885, Petitioner, v. Warden Levern Cohen, Respondent.
Report and Recommendation
Petitioner proceeding pro se and in forma pauperis, brings this action pursuant to 28 U.S.C. § 2241 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. Petitioner is a state prisoner in the custody of SCDC. 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 should be summarily dismissed due to being successive and lacking authorization from the Fourth Circuit Court of Appeals.
The Rules Governing Section 2254 Cases are also applicable to Section 2241 cases. See Rule 1(b) of Rules Governing Section 2254 Cases.
On February 13, 2007, Petitioner was convicted of trafficking cocaine base after a jury trial in Horry County and sentenced to twenty-eight years. Petitioner filed a direct appeal; on December 22, 2009, the South Carolina Court of Appeals dismissed Petitioner's appeal. On October 26, 2010, Petitioner filed a PCR action; the lower court dismissed it on December 16, 2011. On February 1, 2012, Petitioner appealed the PCR decision. The remittitur was issued on September 9, 2013. Petitioner filed a § 2254 in this court on April 10, 2014, and summary judgment was granted in favor of respondent with prejudice as barred by the statute of limitations. In the current action, Petitioner has completed a § 2241 form, indicating he is contesting his state conviction and he is held in a state prison. (ECF No. 1).
It is clear that Petitioner is a state prisoner for consideration of habeas corpus petitions.
The Fourth Circuit definitively holds the majority view of circuits "that, regardless of how they are styled, federal habeas petitions of prisoners who are 'in custody pursuant to the judgment of a State court' should be treated as 'applications under section 2254' for purposes of § 2244(b), even if they challenge the execution of a state sentence." In re Wright, 826 F.3d 774, 779 & n.5, 783 (4th Cir. 2016). The Fourth Circuit held in In re Wright that the type of petitions like the instant Petition are subject to the successive authorization requirement set forth in § 2244(b)(3), which provides: "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." Id. at 779.
Petitioner's Petition, although styled as a § 2241 Petition, is governed by § 2254 and all its associated statutory requirements. See id. at 783. 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. A summary judgment grant in favor of a respondent, regardless of addressing any procedural bar, is considered an adjudication on the merits. "Dismissal of a habeas petition for procedural default is a dismissal on the merits for purposes of determining whether a habeas petition is successive." Harvey v. Koran, 278 F.3d 370, 379 (4th Cir. 2002) abrogated on other grounds by Skinner v. Switzer, 562 U.S. 521 (2011). 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. See Goss v. McFadden, No. 4:14-cv-01299-MGL. 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.
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.
This matter should be dismissed without prejudice because technically Petitioner could obtain permission from the Fourth Circuit allowing him to file a successive petition. Further, under R. 41(b), dismissals for lack of jurisdiction do not operate as an adjudication on the merits.
IT IS SO ORDERED.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge February 6, 2019
Florence, South Carolina
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 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).