Opinion
C/A No. 9:18-2721-TMC-BM
12-11-2018
Robert Young, a/k/a Robert A. Young, Petitioner, v. Warden of Kershaw Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Petitioner, Robert Young, also known as Robert A. Young, a state prisoner at the Kershaw Correctional Institution, part of the South Carolina Department of Corrections, filed this Petition for Writ of Habeas Corpus pro se and in forma pauperis, pursuant to 28 U.S.C. § 2254. In this Petition, Petitioner challenges his 2008 criminal sentences for armed robbery and assault and battery with intent to kill (ABWIK). Petition, ECF No. 1 at 1.
In February 2008, after a jury trial in the Court of Common Pleas for Spartanburg County, Petitioner was found guilty of armed robbery and ABWIK, and sentenced to a total of fifty years (thirty years on the armed robbery conviction and twenty years, consecutive, on the ABWIK conviction). See ECF No. 1 at 1, see also Young v. McFadden, No. 9:15-90-TMC, 2015 WL 13734655 (D.S.C. Oct. 21, 2015), adopted by 2016 WL 228353 (D.S.C. Jan. 19, 2016). Petitioner asserts numerous grounds for relief including that his trial counsel was not present in person at his post-conviction relief (PCR) hearing, eight grounds of ineffective assistance of trial counsel, error by the circuit court in denying his DNA application, and imposition of an impermissible burden of proof (that the standard of presumption of innocence at trial was impermissibly changed such that he was required to prove himself innocent). See ECF No. 1-1.
Petitioner was found not guilty of grand larceny.
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in the above-captioned case pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (AEDPA), 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); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se petitions are also held to a less stringent standard than those drafted by attorneys, and a federal district court is charged with liberally construing a petition filed by a pro se litigant to allow for the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978) (citing Rice v. Olson, 324 U.S. 786, 791-92 (1945); Holiday v. Johnston, 313 U.S. 342, 350 (1941)).
Nonetheless, 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 the Rules Governing Section 2254 Cases in the United States District Courts. 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. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Such is the case here.
Discussion
Petitioner filed a prior petition for writ of habeas corpus (Civil Action Number 9:15-90-TMC-BM) pursuant to 28 U.S.C. § 2254 in January 2015, challenging the same convictions and sentences challenged here. The respondent filed a motion for summary judgment as to the previous petition on April 13, 2015; a Roseboro Order was issued on April 14, 2015; and Petitioner filed (after being granted an extension of time) a response to summary judgment on June 9, 2015. On October 21, 2015, the undersigned issued a Report and Recommendation which recommended that Respondent's Motion for Summary Judgment be granted and the petition be dismissed with prejudice. Petitioner was advised of his right to file objections to the Report and, after being granted two extensions of time to file his objections, he filed objections on December 29, 2015. On January 19, 2016, the Honorable Timothy M. Cain, United States District Judge, granted the respondent's motion for summary judgment and dismissed Petitioner's petition with prejudice. See Young v. McFadden, No. 9:15-90-TMC, 2016 WL 228353 (D.S.C. Jan. 19, 2016), appeal dismissed, 669 F. App'x 658 (4th Cir. Oct. 18, 2016).
A federal court may take judicial notice of the contents of its own records. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1979).
Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975).
"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 § 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). Therefore, since Petitioner's previous § 2254 petition (Civil Action No. 9:15-90-TMC) was decided on the merits, the Petition filed in this action should be summarily dismissed because it is successive and there is no indication that Petitioner requested and received permission from the United States Fourth Circuit Court of Appeals before he submitted it to this Court. See Slack v. McDaniel, 529 U.S. 473, 485-89 (2000)[to qualify as a "successive" petition, prior petition must have been adjudicated on the merits].
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)(adopting and incorporating Report and Recommendation).
This is so even if Petitioner is attempting to bring this successive petition on grounds not raised in his original petition, as under the AEDPA an individual may not file a second or successive § 2254 petition for a writ of habeas corpus (or the equivalent thereof) without first receiving permission to do so from the appropriate circuit court of appeals, as the "gatekeeping" mechanism of 28 U.S.C. § 2244(b)(3)(A) provides that, "[b]efore 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." See In re Williams, 364 F.3d 235, 238 (4th Cir. 2004) [the "initial determination of whether a claim satisfies" the requirements of § 2244(b)(2) "must be made by a court of appeals"]; In re Fowlkes, 326 F.3d 542, 544 (4th Cir. 2003) ["Since Fowlkes has previously filed a section 2254 motion, he may only file a successive section 2254 motion if he receives authorization from this court [the Fourth Circuit Court of Appeals] under the standard established in section 2244(b)(3)(C)."]; United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003)["In the absence of pre-filing authorization [from the court of appeals], the district court lacks jurisdiction to consider an application containing abusive or repetitive claims."].
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). Even if a petitioner's grounds for relief satisfy these strict requirements, however, the Fourth Circuit is still the proper tribunal to make that decision when authorization is requested, not the district court. Moreover, "[t]he 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." 28 U.S.C. § 2244(b)(3)(E).
Rule 9 of the Rules Governing Section 2254 Cases in the United States District Courts reiterates this requirement, stating that "[b]efore presenting a second or successive petition, the petitioner must obtain an order from the appropriate court of appeals, authorizing the district court to consider the petition as required by 28 U.S.C. § 2244(b)(3) and (4)."
Recommendation
Based on the foregoing, it is recommended that the instant Petition for a Writ of Habeas Corpus be summarily dismissed without prejudice and without requiring Respondent to file a return.
Petitioner's attention is directed to the important notice on the next page.
/s/_________
Bristow Marchant
United States Magistrate Judge December 11, 2018
Charleston, South Carolina
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).