Opinion
C. A. 9:21-03332-TMC-MHC
12-09-2021
Robert L. Foster, Petitioner, v. Warden of Livesay Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
Robert L. Foster, a pro se state prisoner, appears to be seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. 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.
Petitioner initially submitted a two-page letter titled “Actual Innocence Claim.” ECF No. 1 at 1. He requested release from custody such that it appeared he filed a habeas corpus petition (and not an action pursuant to 42 U.S.C. § 1983). See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (stating that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983”); Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (attacking the length of duration of confinement is within the core of habeas corpus). On December 3, 2021, Petitioner filed a completed Form AO-241 (petition under 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody) that has been docketed as an attachment to ECF No. 1 (ECF No. 1-2) to create one docket entry to be known as the Petition.
I. BACKGROUND
Petitioner states that he is challenging his May 21, 2008 conviction (2008-GS-42-2261) in Spartanburg County, South Carolina. ECF No. 1-2 at 1. Records from the South Carolina Department of Corrections (SCDC) and Spartanburg County indicate Petitioner was convicted at trial on the charge of manufacture/distribution of cocaine base (crack cocaine) (Indictment No. 08-GS-42-2261), for which he was sentenced to twenty-years' imprisonment. SCDC records indicate Petitioner is currently serving only one sentence (case number 2008-GS-42-02261). See Spartanburg County Seventh Judicial Circuit Public Index, https://publicindex.sccourts.org/Spart anburg/PublicIndex/CaseDetails.aspx?County=42&CourtAgency=42001&Casenum=2008GS42 02261&CaseType=C&HKey=52122991126977111829072116858610711811373107837910810 7113517843118521084370796699112551091141061228010977; SCDC Inmate Report, http:// public.doc.state.sc.us/scdc-public/ [Search Inmate “Robert Foster”] (last visited Dec. 8, 2021).
Plaintiff also lists case number 2007-GS-42-06029/K-285779. See ECF No. 1-2 at 1. A court will only entertain a § 2254 habeas petition from a person who is “in custody” under the conviction or sentence under attack at the time the petition is filed. Wilson v. Flaherty, 689 F.3d 332, 336 (4th Cir. 2012) (quoting Maleng v. Cook, 490 U.S. 488, 490-91 (1989)). Here, Petitioner was not “in custody” pursuant to any conviction or sentence as to case number 2007-GS-42-06029/K285779 and he has not alleged any exception to the above rule. There is no indication that Petitioner was ever convicted on this charge. Petitioner attached a copy of a partial, unsigned order for destruction of arrest records as to warrant/GS number K285779/200/GS-12-06029 in which it was written that “[t]he charge was dismissed, nolle prossed, or [Petitioner] was found not guilty on 09/26/2008.” ECF No. 1-3 at 11. Thus, this Court lacks jurisdiction over a habeas petition challenging case number 2007-GS-42-06029/warrant K285779 because Petitioner was not in custody as to any conviction or sentence as to this charge at the time he filed his Petition.
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 previously filed a § 2254 petition in this Court on October 2, 2014 (case number 9:14-3853-TMC-BM) in which he challenged the same May 2008 criminal conviction (case number 2008-GS-42-02261) for possession with intent to distribute cocaine base (crack cocaine), in which the respondent's motion for summary judgment was granted and the petition was dismissed with prejudice. See Foster v. Reynolds, No. 9:14-3853-TMC, 2015 WL 5920736, at *2 (D.S.C. October 8, 2015), appeal dismissed, 640 Fed.Appx. 258 (4th Cir. Apr. 4, 2016), cert. denied, 137 S.Ct. 645 (2017). On August 8, 2017, Petitioner filed a second § 2254 petition (case number 9:17-02083-TMC-BM) challenging the same May 2008 criminal conviction, and the case was summarily dismissed as a successive petition. See Foster v. Warden of Tyger River Corr. Inst., No. 9:17-02083-TMC-BM, 2017 WL 6987993 (D.S.C. Dec. 20, 2017), report and recommendation adopted, No. CV 9:17-2083-TMC, 2018 WL 451721 (D.S.C. Jan. 17, 2018).
II. 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.
III. 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). The present Petition qualifies as a successive § 2254 action because Petitioner's first § 2254 petition (case number 9:14-3853-TMC-BM) challenged the same conviction and sentence and was decided on the merits. See Foster v. Reynolds, No. 9:14-3853-TMC, 2015 WL 5920736, at *2 (granting the respondent's motion for summary judgment and dismissing the petition with prejudice). 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 ground(s) 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 is subject to summary dismissal. 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”).
IV. 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).