Opinion
C/A No. 3:08-105-CMC-JRM.
February 11, 2008
Report and Recommendation
Background of this Case
This is a habeas corpus action filed by a state prisoner pursuant to 28 U.S.C. § 2254. The petitioner is an inmate at the Lieber Correctional Institution of the South Carolina Department of Corrections (SCDC). On May 29, 1997, in the Court of General Sessions for Greenwood County, the petitioner was convicted, pursuant to a jury's verdict, of murder (Indictment No. 96-GS-24-918), and was sentenced to thirty (30) years in prison. The Supreme Court of South Carolina affirmed the conviction on direct appeal. State v. Perez, 334 S.C. 563, 514 S.E.2d 754 (1999). The petitioner filed an application for post-conviction relief (Case No. 99-CP-24-409) and appealed the denial of post-conviction relief.
The petitioner's answers on page 4 (pre-printed page 5) and page 6 (pre-printed page 7) of the petition indicate that the Supreme Court of South Carolina initially granted certiorari in the petitioner's appeal from the denial of post-conviction relief. The Supreme Court of South Carolina on October 27, 2003, dismissed the writ of certiorari as improvidently granted (Opinion No. 2003-MO-061).
The petitioner raises one ground in the petition in the case at bar: ineffective assistance of counsel. This ineffective assistance of counsel relates to trial counsel's failure to assert the petitioner's rights under the Vienna Convention on Consular Relations. The petitioner contends that this issue is timely because a decision (2004 ICJ No. 128) of the International Court of Justice is a "new ruling of Law[.]" See Concerning Avena and Other Mexican Nationals (Mexico v. United States), 2004 I.C.J. 12 (March 31, 2004), reported at 2004 WESTLAW® 2450913.
A case concerning the Vienna Convention on Consular Relations is currently before the Supreme Court of the United States. See Ex parte Medellin, 223 S.W.3d 315 (Tex.Crim.App. 2006), cert. granted sub nom., Medellin v. Texas, 167 L.Ed.2d 862, 127 S.Ct. 2129 (2007).
Discussion
Under established local procedure in this judicial district, a careful review has been made of the pro se petition and the Form AO 240 (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 (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), cert. denied, 516 U.S. 1177 (1996); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979) (recognizing the district court's authority to conduct an initial screening of any pro se filing); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978), cert. denied, Moffitt v. Loe, 446 U.S. 928 (1980); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert. denied, Leeke v. Gordon, 439 U.S. 970 (1978). The petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. See Erickson v. Pardus, 75 U.S.L.W. 3643, 167 L.Ed.2d 1081, 127 S.Ct. 2197 (2007) ( per curiam); Hughes v. Rowe, 449 U.S. 5, 9-10 n. 7 (1980) ( per curiam); and Cruz v. Beto, 405 U.S. 319 (1972). When a federal court is evaluating a pro se complaint or petition, the plaintiff's or petitioner's allegations are assumed to be true. Fine v. City of New York, 529 F.2d 70, 74 (2nd Cir. 1975). 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 (4th Cir. 1990).With respect to his conviction for murder, the petitioner's sole federal remedy is a writ of habeas corpus under 28 U.S.C. § 2241 or 28 U.S.C. § 2254, which can be sought only after he has exhausted his state court remedies. See 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270 (1971); and Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-491 (1973) (exhaustion required under 28 U.S.C. § 2241). Although the petitioner has exhausted his state remedies, he has, in the case at bar, submitted a successive petition.
In Natalio Alfana Perez v. John Ozmint; and Attorney General of the State of South Carolina, Civil Action No. 3:05-3232-CMC-JRM, the petitioner brought a habeas corpus action pursuant to 28 U.S.C. § 2254 with respect to his conviction for murder. After the petitioner submitted the item need to render Civil Action No. 3:05-3232-CMC-JRM into "proper form," the undersigned on November 29, 2005, granted the petitioner's motion to proceed in forma pauperis and directed the respondents to file a return. The respondents on January 18, 2006, filed a motion for summary judgment on the grounds that the petition was untimely.
The undersigned on January 20, 2006, issued a Roseboro order to apprise the petitioner of dispositive motion procedure. Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975). The petitioner responded to the Roseboro order on February 14, 2006. In a Report and Recommendation filed in Civil Action 3:05-3232-CMC-JRM on March 8, 2006, the undersigned recommended that the respondents' motion for summary judgment be granted.
The parties in Civil Action No. 3:05-3232-CMC-JRM were apprised of their right to file timely written objections to the Report and Recommendation and of the serious consequences of a failure to do so. On March 21, 2006, the petitioner filed timely written objections to the Report and Recommendation.
In an Order filed in Civil Action No. 3:05-3232-CMC-JRM on March 27, 2006, the Honorable Cameron McGowan Currie, United States District Judge, adopted the Report and Recommendation and granted summary judgment to the respondents. No appeal was filed in Civil Action No. 3:05-3232-CMC-JRM.
The standard for determining whether a petition is successive appears in Slack v. McDaniel, 529 U.S. 473, 485-89 (2000) (to qualify as "successive" petition, prior petition must have been adjudicated on the merits). See also Tyler v. Cain, 533 U.S. 656 (2001) (Section 2244(b) applies when first habeas corpus petition adjudicated on the merits was filed prior to enactment of AEDPA and second petition was filed after enactment of AEDPA). Since Civil Action No. 3:05-3232-CMC-JRM was decided by summary judgment, the petition in the above-captioned case (Civil Action No. 3:08-0105-CMC-JRM) is successive.
This court may take judicial notice of Civil Action No. 3:05-3232-CMC-JRM. Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970). See also 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.'"); and Mann v. Peoples First National Bank Trust Co., 209 F.2d 570, 572 (4th Cir. 1954) (approving district court's taking judicial notice of prior suit with same parties: "We think that the judge below was correct in holding that he could take judicial notice of the proceedings had before him in the prior suit to which Mann and the Distilling Company as well as the bank were parties.").
The § 2254 petition in the above-captioned case is subject to dismissal under Rule 9 of the Section 2254 Rules. Miller v. Bordenkircher, 764 F.2d 245, 248-50 nn. 3-5 (4th Cir. 1985). See also McClesky v. Zant, 499 U.S. 467 (1991); Section 106 of the Anti-Terrorism and Effective Death Penalty Act of 1996, Public Law 104-132, 110 U.S.Stat. 1214; Bennett v. Angelone, 92 F.3d 1336 (4th Cir. 1996), cert. denied, 519 U.S. 1002 (1996); and Armstead v. Parke, 930 F. Supp. 1285 (N.D. Ind. 1996), affirmed, 116 F.3d 1482 [Table], 1997 U.S.App. LEXIS® 14835, 1997 WESTLAW® 345896 (7th Cir., June 13, 1997). See also Aloe Creme Laboratories, Inc. v. Francine Co., where the United States Court of Appeals for the Fifth Circuit commented:
The District Court clearly had the right to take notice of its own files and records and it had no duty to grind the same corn a second time. Once was sufficient.Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d at 1296. See also United States v. Parker, 956 F.2d 169, 171 (8th Cir. 1992).
In any event, there is no indication in the present petition that the petitioner has sought leave from the United States Court of Appeals for the Fourth Circuit to file the petition in the above-captioned case. Leave from the United States Court of Appeals for the Fourth Circuit is now required under the Anti-Terrorism and Effective Death Penalty Act of 1996 for filers of successive § 2254 petitions. Before the petitioner attempts to file another petition in the United States District Court for the District of South Carolina, he must seek and obtain leave ( i.e., written permission) from the United States Court of Appeals for the Fourth Circuit. The petitioner can obtain the necessary form for doing so from the Clerk's Office of the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia.
See Section 106 of the Anti-Terrorism and Effective Death Penalty Act of 1996:
(B) LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS.) Section 2244(b) of title 28, UNITED STATES CODE, is amended to read as follows:
"(B)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
"(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless)
"(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
"(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
"(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
"(3)(A) 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.
"(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.
"(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.
"(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.
"(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.
"(4) A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.".
The five-page form for seeking leave to file a successive petition is entitled a "Motion for Authorization to File Successive Application under 28 U.S.C. § 2244." The mailing address of the Clerk's Office of the United States Court of Appeals for the Fourth Circuit is 1100 East Main Street — Suite 501, Richmond, Virginia 23219-3517.
Recommendation
Accordingly, it is recommended that the § 2254 petition be dismissed without prejudice and without requiring the respondent to file a return. See Allen v. Perini, 424 F.2d 134, 141 (6th Cir.) (federal district courts have duty to screen habeas corpus petitions and eliminate burden placed on respondents caused by ordering an unnecessary answer or return), cert. denied, 400 U.S. 906 (1970); Toney v. Gammon, 79 F.3d 693, 697 (8th Cir. 1996) ("However, a petition may be summarily dismissed if the record clearly indicates that the petitioner's claims are either barred from review or without merit."); Baker v. Marshall, 1995 U.S.Dist. LEXIS® 4614, *2-*3, 1995 WESTLAW® 150451 (N.D. Cal., March 31, 1995) ("The District Court may enter an order for the summary dismissal of a habeas petition if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in this Court."); and the Anti-Terrorism and Effective Death Penalty Act of 1996. The petitioner's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The petitioner is advised that he may file specific written objections to this Report and Recommendation with the District Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In the absence of a timely filed objection, a district court judge 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 Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005).Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed.R.Civ.P. 6(a) (e). Filing by mail pursuant to Fed.R.Civ.P. 5 may be accomplished by mailing objections to:
Larry W. Propes, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201Failure to timely file specific written objections to this Report and Recommendation will result in the 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); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, Schronce v. United States, 467 U.S. 1208 (1984); and Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).