Opinion
C. A. 6:20-cv-00323-BHH-KFM
02-03-2020
Willie James Ervin, Petitioner, v. Michael James Stephen, 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 a sentence of life for kidnapping imposed by the Greenwood County General Sessions Court. See Greenwood County Public Index, https://publicindex.sccourts.org/Greenwood/PublicIndex/PISearch.aspx (enter the petitioner's name and E633907) (last visited February 3, 2020). The petitioner appealed a companion conviction for assault with intent to commit criminal sexual conduct and the South Carolina Court of Appeals reversed that conviction. See South Carolina v. Ervin, 510 S.E.2d 220 (S.C. Ct. App. 1998).
The court takes judicial notice of the records in the petitioner's criminal case in the Greenwood County General Sessions Court, as well as the petitioner's several postconviction relief actions in the Greenwood County Court of Common Pleas. See Phillips v. Pitt Cty. 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.'”).
Petitioner's Prior Collateral Attacks
On June 3, 2002, the petitioner filed a post-conviction relief (“PCR”) action in the Greenwood County Court of Common Pleas, which is noted as being “withdrawn or settled by parties.” See Greenwood County Public Index (enter the petitioner's name and 2000-CP-24-00596).
Two years later, the petitioner filed a petition for relief with this court pursuant to 28 U.S.C. § 2254. See Ervin v. Rushton, C/A No. 6:04-cv-23176-GRA (D.S.C.). The petition was dismissed on the merits (as time-barred) on January 19, 2006. Id. at docs. 14; 16, appeal dismissed, 193 Fed.Appx. 192 (4th Cir. 2006).
The petitioner then filed another PCR action on March 29, 2007. See Greenwood County Public Index (enter the petitioner's name and 2006-CP-24-01219). The PCR action was dismissed on March 28, 2008. Id. A PCR filed on November 9, 2007, was “withdrawn or settled by parties” on February 29, 2008. See Greenwood County Public Index (enter the petitioner's name and 2007-CP-24-00303). A PCR filed in 2008 was dismissed on May 3, 2010, and although the docket notes a notice of appeal filed, there is no indication that the appeal was perfected. See Greenwood County Public Index (enter the petitioner's name and 2008-CP-24-01352).
Next, the petitioner then filed a PCR action on January 8, 2010. See Greenwood County Public Index (enter the petitioner's name and 2010-CP-24-00017). The PCR was denied on December 14, 2011. Id. The petitioner then filed another PCR action on February 4, 2011. See Greenwood County Public Index (enter the petitioner's name and 2011-CP-24-00126). The petition was dismissed on March 27, 2012. Id. An order was then entered restricting future PCR filings by the petitioner, in light of his numerous PCR actions (doc. 1-1). See Greenwood County Public Index (enter the petitioner's name and 2011-CP-24-00126). Two subsequent PCR actions were dismissed based upon the order restricting future filings. See Greenwood County Public Index (enter the petitioner's name and 2012-CP-24-01045, 2014-CP-24-01324).
The petitioner then filed a motion with the Fourth Circuit Court of Appeals, seeking authorization to file a successive § 2254 petition. In re Willie Ervin, C/A No. 16-419 (4th Cir. 2016). The motion was denied on May 18, 2016. Id.
While his motion for authorization to file a successive § 2254 petition remained pending, the petitioner filed an additional § 2254 petition with this court. See Ervin v. Warden Broad River Corr. Inst., C/A No. 6:16-cv-01294-BHH (D.S.C.). The petition was denied as successive on November 16, 2016. Id. at docs. 13; 16; 18; see Ervin v. Warden of Broad River Corr. Inst., C/A No. 6:16-cv-01294-BHH, 2016 WL 6781059 (D.S.C. Nov. 16, 2016).
Petitioner's Present Action
As his first ground for relief in the instant matter, the petitioner argues that the Greenwood County Solicitor did not have subject matter jurisdiction to bring indictment against him because the Grand Jury was convened outside the statute (doc. 1 at 5-6). His second ground for relief is that he wad denied equal protection and due process (id. at 6-8). The petitioner's third ground for relief is that he was denied equal rights under the law based upon the decision by the South Carolina Court of Appeals in only overturning one of his convictions (id. at 8-9). As his fourth ground for relief, he asserts that his due process rights have been violated because his PCR applications are not being processed (id. at 10-11).
The petitioner asserts that this petition is timely because a PCR application submitted on October 4, 2019, was returned unprocessed based upon the order restricting his filings (noted above) (id. at 13; see doc. 1-1). For relief, the petitioner seeks to have his conviction and sentence vacated (id. at 14).
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 previously filed two § 2254 petitions, one of which the court denied on the merits on January 19, 2006, and one that was dismissed as successive. See Ervin v. Rushton, C/A No. 6:04-cv-23176-GRA, at docs. 14; 16 (D.S.C.), appeal dismissed, 193 Fed.Appx. 192 (4th Cir. 2006); see also Ervin v. Warden of Broad River Corr. Inst., C/A No. 6:16-cv-01294-BHH, 2016 WL 6781059 (D.S.C. Nov. 16, 2016). Thus, the instant matter is successive. See 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).
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 petitioner's attention 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 Ass'n 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
300 East Washington Street, Room 239
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).