Opinion
C. A. 9:23-02864-RMG-MHC
08-15-2023
Willie Johnson, Petitioner, v. Warden Kenneth Nelson, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
Willie Johnson, a pro se state prisoner incarcerated at the Broad River Correctional Institution of the South Carolina Department of Corrections (SCDC), filed a Petition for habeas corpus relief. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
I. NOTICE OF RECHARACTERIZATION OF PETITION
Petitioner filed this action on a Form AO 242 (Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241) in which he appears to seek habeas relief under 28 U.S.C. § 2241 (§ 2241). However, a petition for writ of habeas corpus pursuant to § 2241 and a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (§ 2254) are separate and distinct mechanisms for obtaining post-conviction relief. A § 2241 petition attacks the manner in which a sentence is executed. See 28 U.S.C. § 2241(a). By contrast, a § 2254 motion challenges the constitutional validity of a state conviction or sentence. In re Wright, 826 F.3d 774, 779 (4th. Cir. 2016). Regardless of the label used by a petitioner, the subject matter of the motion, and not its title, determines its status. See e.g., Calderon v. Thompson, 523 U.S. 538, 554 (1998); Castro v. United States, 540 U.S. 375, 794 (2003) (stating that a court may recharacterize a pro se motion “to create better correspondence between the substance” of the motion and “its underlying legal basis”); see also Adams v. Middlebrooks, 810 F.Supp.2d 119, 122 (D.D.C. 2011) (finding that a petitioner's choice of statute is not dispositive and that a petitioner may not escape the requirements found under § 2254 by filing the petitioner under § 2241); Wilson v. Clarke, No. 3:21CV613-HEH, 2022 WL 47605, at *1 (E.D. Va. Jan. 5, 2022) (noting, in denying motion to amend § 2241 petition, that § 2241 was the wrong vehicle for the petitioner to challenge his state court detention), appeal dismissed, No. 22-6088, 2023 WL 3617842 (4th Cir. May 24, 2023).
Here, Petitioner is a state inmate. He asks to be released from custody and, thus, appears to be challenging his conviction and/or sentence. Petitioner is therefore given notice that this case is recharacterized as an action brought under § 2254.
II. BACKGROUND
Petitioner was convicted on the charge of murder (indictment number 85-GS-10-159) in the Court of General Sessions for Charleston County and was sentenced to a term of life imprisonment on April 18, 1985. His conviction was affirmed on direct appeal by the Supreme Court of South Carolina on December 8, 1986. See Johnson v. Bodison, No. 9:09-1782-PMD-BM, 2009 WL 3738786, at * 3 (D.S.C. Nov. 9, 2009).
On March 30, 1989, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (case number 3:89-00722-MJP) that was dismissed on March 14, 1990. The United States Court of Appeals for the Fourth Circuit dismissed Petitioner's subsequent appeal but modified the judgment to indicate the dismissal was without prejudice because the petition was a mixed petition. Johnson v. Evatt, No. 89-6412, 900 F.2d 252 (4th Cir. Apr. 4, 1990).
A second § 2254 petition was filed in 1990, service was authorized, and respondents filed a motion for summary judgment.. The respondents' motion for summary judgment was granted. See Johnson v. Evatt, No. 3:90-1308-MJP-HMH (D.S.C.). The Fourth Circuit granted a certificate of probable cause to appeal on June 10, 2002, and appointed counsel (David I. Bruck, Esq.), to represent the petitioner and oral argument was held. On May 26, 1993, the Fourth Circuit affirmed the judgment of the district court. See Johnson v. Evatt, No. 91-7166, 993 F.2d 1537 (4th Cir. 1993), cert. denied, 510 U.S. 936 (1993).
A federal court may take judicial notice of the contents of its own records, as well as those records of other courts. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that courts may take judicial notice of other courts' records and proceedings).
Petitioner filed a third § 2254 petition on January 28, 1994, the respondents' motion for summary judgment was granted, and the petition was dismissed on March 10, 1995. See Johnson v. Evatt, No. 0:94-310-MJP-BM (D.S.C.). On June 28, 1995, the Fourth Circuit dismissed Petitioner's appeal. Johnson v. Evatt, 60 F.3d 822 (4th Cir. 1995).
Petitioner filed his fourth § 2254 petition on April 23, 1999. The respondents' motion for summary judgment was granted and the action was dismissed as successive on October 8, 1999. See Johnson v. Catoe, No. 0:99-1070-MJP-BM (D.S.C.). The Fourth Circuit dismissed Petitioner's appeal on December 22, 1999. Johnson v. Catoe, 202 F.3d 259 (4th Cir. 1999).
Petitioner filed a fifth § 2254 petition on March 6, 2007, and it was dismissed as a successive petition on June 19, 2007. Johnson v. Ozmint, No. 0:07-0604-PMD-BM (D.S.C.). The Fourth Circuit dismissed Petitioner's appeal on August 24, 2007. Johnson v. Warden, Lieber Corr. Inst., 235 Fed.Appx. 69 (4th Cir. 2007). A sixth § 2254 petition, filed by Petitioner on July 6, 2009, was dismissed as successive on November 9, 2009. Johnson v. Bodison, No. 9:09-1782-PMD-BM, 2009 WL 3738786 (D.S.C. Nov. 9, 2009).
In this seventh § 2254 Petition, Petitioner asserts that the trial judge in his criminal case failed to “actually” sign the order committing him to the SCDC. ECF No. 1 at 6. He attached a memorandum in which he appears to allege claims concerning post-conviction relief proceedings and appeals. Petitioner may also be attempting to allege claims concerning his conditions of confinement. See ECF No. 1-2.
In a previous case brought by Petitioner under 42 U.S.C. § 1983 (§ 1983), the court concluded that Petitioner could not bring a challenge to the fact of his confinement in a § 1983 action and also found that:
Plaintiff's claim cannot proceed because there is simply no evidence, other than Plaintiff's say-so, that he is being improperly detained. The record contains a copy of Plaintiff's commitment order, which indicates Plaintiff was “committed to jail 10-03-84,” and it states that Plaintiff is “confined under the jurisdiction and control of the South Carolina Department of Corrections for a period of his life.” (Def.'s Mot. for Summ. J. Ex. 2 [23-4].) The order is dated April 18, 1985, and although it does not contain the handwritten signature of the judge, it is signed as “s/ T.L. Hughston, Jr.” (Id.) Plaintiff has not pointed to, and the court has not found, any authority to suggest the commitment order is invalid.Johnson v. Ozmint, 567 F.Supp.2d 806, 813 (D.S.C. 2008).
To the extent Petitioner may be attempting to raise a claim concerning his conditions of confinement at SCDC, he may not bring such claims in this habeas action and must do so, if at all, in a separate civil action. See Preiser v. Rodriguez. 411 U.S. 475, 500 (1973) (complaint or petition challenging the fact or duration of confinement should be construed and processed as a habeas corpus petition, while a complaint or petition challenging the conditions of confinement should be construed and processed as a complaint pursuant to 42 U.S.C. § 1983).
III. STANDARD OF REVIEW
A pro se habeas petition is reviewed pursuant to the procedural provisions of the Rules Governing Section 2254 Proceedings in the United States District Court, 28 U.S.C. § 2254; the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996; 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); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). The Court screens a petitioner's lawsuit to determine “[i]f 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.
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b), Rules Governing § 2254 Cases, 28 U.S.C.A. foll. § 2254.
Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even when considered under this less stringent standard, for the reasons set forth below, the Petition submitted in this case is subject to summary dismissal.
IV. DISCUSSION
This action should be summarily dismissed because this is a successive § 2254 petition. “Under the AEDPA, an individual may not file a second or successive § 2254 petition for a writ of habeas corpus or [a 28 U.S.C.] § 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). The “gatekeeping” mechanism created by the AEDPA amended 28 U.S.C. § 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. § 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” § 2244(b). § 2244(b)(3)(C); see §§ 2244(b)(3)(B), (D).Felker v. Turpin, 518 U.S. 651, 657 (1996).
For a petition to qualify as “successive,” a prior petition must have been adjudicated on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-89 (2000); see also Henderson v. Bazzle, C/A No. 9:08-978-MBS-GCK, 2008 WL 1908535, at *3 (D.S.C. April 29, 2008) (for a petition to qualify as “successive,” the prior petition must have been adjudicated on the merits which includes a prior dismissal of a petition as untimely); Tyler v. Caine, 533 U.S. 656 (2001) (Section 2244(b) applies when first habeas corpus petition adjudicated on the merits was filed prior to enactment of the AEDPA and a second petition was filed after the enactment of the AEDPA). Petitioner previously filed a petition pursuant to § 2254 (case number 3:90-1308-MJP-HMH) in which he challenged the same conviction and sentence as challenged in the present Petition. A motion for summary judgment was filed by the respondents in the earlier petition and the motion was granted. See Johnson v. Evatt, No. 3:90-1308-MJP-HMH (D.S.C.); Johnson v. Evatt, No. 91-7166, 993 F.2d 1537 (4th Cir. 1993), cert. denied, 510 U.S. 936 (1993). Thus the present Petition qualifies as a successive action because Petitioner's second § 2254 petition challenged the same conviction and sentence and was decided on the merits. Therefore, this action should be summarily dismissed because it is successive and Petitioner has not alleged that he received permission from the United States Fourth Circuit Court of Appeals before he submitted his Petition to this Court.
The issue of successiveness of a habeas petition may be raised by the court sua sponte. Rodriguez v. Johnson, 104 F.3d 694, 697 n. 1 (5th Cir. 1997); Simmons v. South Carolina, No. 6:14-cv-4803-RBH, 2015 WL 2173233, at *4 (D.S.C. May 8, 2015).
Petitioner may be attempting to assert a claim that relies on a new rule of constitutional law or on new evidence. A petitioner may be able to present a claim for the first time in a successive habeas petition where the claim relies on a new rule of constitutional law, see 28 U.S.C. § 2244(b)(2)(A), or, if the claim is based on newly discovered evidence, where the petitioner can make a prima facie showing of both cause and prejudice within the meaning of § 2244(b)(2)(B)(i) and § 2244(b)(2)(B)(ii). See Evans v. Smith, 220 F.3d 306, 323 (4th Cir. 2000). However, even if Petitioner could show that his grounds satisfy these strict requirements, the Fourth Circuit is still the proper tribunal to make that decision when authorization is requested, not the district court. See 28 U.S.C. § 2244(b)(3)(A); see also Gonzalez v. Crosby, 545 U.S. 524, 530 (2005) (“[B]efore the district court may accept a successive petition for filing, the court of appeals must determine that it presents a claim not previously raised that is sufficient to meet § 2244(b)(2)'s new-rule or actual-innocence provisions.”) (citing 28 U.S.C. § 2244(b)(3)). Therefore, because 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 and the Petition should be summarily dismissed. See Burton v. Stewart, 549 U.S. 147, 153 (2007) (holding that failure of petitioner to obtain authorization to file a “second or successive” petition deprived the district court of jurisdiction to consider the second or successive petition); Abraham v. Padua, Civil Action No. 6:11-cv-2067-RMG, 2012 WL 4364643, at * 1 (D.S.C. Sept. 24, 2012) (noting that the district “[c]ourt lacks jurisdiction to hear [Petitioner's] second claim for habeas relief until authorized by the ... Fourth Circuit”).
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that the Petition in this action be DISMISSED without prejudice and without requiring Respondent to file a return.
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 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).