Opinion
C/A 6:21-cv-03054-RBH-KFM
10-18-2021
Joshua Andrew Monroe, Petitioner, v. Warden Perry Correctional Institution, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
The petitioner, proceeding pro se and in forma pauperis, 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 Civil 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. For the reasons set forth below, it is recommended that the petitioner's § 2254 petition be summarily dismissed.
ALLEGATIONS
Petitioner's Conviction and Sentence
The petitioner is currently serving concurrent sentences for twenty-five years for three counts of kidnapping, two counts of armed robbery, and criminal sexual conduct (“CSC”); and twenty years for attempted armed robbery imposed by the Charleston County General Sessions Court. See Charleston County Public Index, https://publicindex. sccourts.org/Charleston/PublicIndex/PISearch.aspx (enter the petitioner's name and K300711, K300733, K300735, 5300739, K350017, K350020, K350032) (last visited October 18, 2021). The petitioner appealed, but his appeal was dismissed for failure to comply with the rules. See State of South Carolina v. Monroe, C/A No. 2012-212938 (S.C. Ct. App.).
The court takes judicial notice of the records in the petitioner's criminal case in the Charleston County General Sessions Court, as well as the petitioner's post-conviction relief action in the Charleston County Court of Common Pleas and a prior action in this court brought pursuant to § 2254. See Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial notice of matters of public record.”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”). Of note, during this same time, the petitioner also pleaded guilty and was sentenced for charges in the Dorchester County General Sessions Court. See Dorchester County Public Index, https://publicindex. sccourts.org/Dorchester/PublicIndex/PISearch.aspx (enter the petitioner's name and I102111, I102114, I102145, I102150, J092906, J092908) (last visited October 18, 2021).
Petitioner's Prior Collateral Attacks in the State Court
On September 17, 2013, the petitioner filed a post-conviction relief action (“PCR”) in the Charleston County Court of Common Pleas. See Charleston County Public Index (enter the petitioner's name and 2013-CP-10-05445). In the PCR petition, the petitioner raised grounds of ineffective assistance of counsel (“IAC”) for failing to properly file his appeal, for advising the petitioner to plead guilty to CSC, for failing to move to quash the CSC indictment, for failing to move for dismissal of armed robbery, for advising the petitioner to make incriminating statement to the solicitor, and denial of due process of law. Id. By Order dated November 18, 2015, the petitioner's PCR was dismissed, but he was granted a belated review of direct appeal issues. Id. The petitioner appealed his PCR dismissal. Monroe v. South Carolina, C/A No. 2015-002434 (S.C. Ct. App.). The South Carolina Appellate Court dismissed the petitioner's appeal, finding that the PCR court appropriately dismissed the petitioner's PCR. Id. The Appellate Court also performed a review of the petitioner's direct appeal issues and dismissed those matters as well. Id.
Petitioner's Prior Collateral Attacks in this Court
The petitioner then filed a federal habeas petition in this court pursuant to § 2254 on February 26, 2018. Monroe v. Lewis, C/A No. 6:18-cv-00561-RBH (D.S.C.). The petitioner's petition was denied based upon timeliness as well as on the merits. Id. at docs. 27; 38. The petitioner appealed, the Fourth Circuit dismissed his appeal, and the Supreme Court denied the petitioner's petition for a writ of certiorari. Id. at docs. 41; 48; 49; 50; 51; Monroe v. Lewis, C/A No. 19-6442 (4th Cir. Oct. 17, 2019).
Petitioner's Present Action
The petitioner then filed the instant action, again seeking habeas relief based upon his Charleston County convictions (doc. 3). As ground one for relief, the petitioner asserts that his plea was unlawful, irrational, and involuntary (id. at 5-7). Ground two for relief asserted by the petitioner is that guilt by association is unlawful and a due process violation (id. at 7-8). With respect to timeliness, the petitioner asserts that his claim is timely based upon the shocking violation, the due process violations, actual innocence, and ineffective assistance of counsel (id. at 13). Attached to the petitioner's petition is an order from the South Carolina Supreme Court denying his request for a writ of habeas corpus (doc. 3-1). For relief, the petitioner seeks habeas corpus relief (doc. 3 at 15).
STANDARD OF REVIEW
The undersigned has reviewed 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 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
On April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 (the “AEDPA”) amended 28 U.S.C. § 2254 and other habeas statutes:
The AEDPA effected a number of substantial changes regarding the availability of federal postconviction relief to individuals convicted of crimes in federal and state courts. Of particular importance here are the provisions of the AEDPA codifying and extending judicially constructed limits on the consideration of second and successive applications for collateral relief. Under the AEDPA, an individual may not file a second or successive § 2254 petition for a writ of habeas corpus or § 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) (footnote and internal citation omitted). The “gatekeeping” mechanism created by the AEDPA amended § 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. 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).Felker v. Turpin, 518 U.S. 651, 657 (1996) (internal citations omitted).
The instant action qualifies as a second or successive § 2254 action because the petitioner has previously filed a § 2254 petition, which was denied on the merits. Monroe v. Lewis, C/A No. 6:18-cv-00561-RBH, at docs. 27; 38. Here, as noted, the petitioner's prior petition was adjudicated on the merits and denied based upon timeliness as well as that two of the petitioner's grounds for relief were not cognizable because they involved state law and procedure and the petitioner's IAC claim, raised in response to a motion for summary judgment, was not permitted. Id. at docs. 27; 38.
Nevertheless, 28 U.S.C. § 2244(b)(2) provides that in some circumstances a petitioner may bring a second or successive § 2254 action. That statute permits a court of appeals to determine whether to authorize a successive petition. Thus, the United States Court of Appeals for the Fourth Circuit-not this District Court-is the proper tribunal to decide whether to authorize a successive § 2254 petition. See United States v. Winestock, 340 F.3d 200, 205-06 (4th Cir. 2003), abrogated in part on other grounds by United States v. McRae, 793 F.3d 392 (4th Cir. 2015). Because it appears that the petitioner did not obtain authorization from the Fourth Circuit Court of Appeals to file this petition, this Court does not have jurisdiction to consider it. Id.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2254 petition be dismissed without requiring the respondent to file an answer or return. The attention of the parties is directed to the important notice on the next page.
The petitioner cannot cure the deficiencies noted herein; however, dismissal without prejudice is recommended because the Court of Appeals has held that dismissals for lack of subject-matter jurisdiction must be without prejudice. S. Walk at Broadlands Homeowner's Assn v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
IT IS SO RECOMMENDED.
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 250 East North Street, Room 2300 Greenville, South Carolina 29601
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).