Opinion
2:21-cv-03206-JD-MGB
11-01-2022
Joseph H. Gibbs, #185709, Petitioner, Attorney General of South Carolina Warden of Broad River Correctional Institution,
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Joseph H. Gibbs (“Petitioner”), a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. No. 1.) Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), the undersigned is authorized to review the petition and submit a recommendation to the assigned United States District Judge. For the reasons discussed herein, the undersigned finds that the Court lacks jurisdiction over the petition and therefore recommends that this case be summarily dismissed, without prejudice and without requiring the warden to respond.
BACKGROUND
On March 10, 1992, Petitioner was convicted of murder and burglary before the Court of General Sessions in Jasper County, South Carolina and sentenced to life imprisonment.(See Indictment Nos. 1992-GS-27-002, -003.) Petitioner filed a timely notice of appeal, and the Supreme Court of South Carolina affirmed Petitioner's conviction on May 14, 1993. (See Op. No. 93-MO-111.) Instead of filing an application for post-conviction relief (“PCR”) with the state court, Petitioner then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 before the United States District Court for the District of South Carolina. (See Case No. 3:93-cv-2921-MJP.) The district court dismissed the mixed petition on September 14, 1994, and Petitioner did not file an appeal.
The undersigned takes judicial notice of the records filed in Petitioner's underlying criminal case, his postconviction relief proceedings, and related federal actions. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts “may properly take judicial notice of matters of public record”); Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (explaining that a federal court may take judicial notice of the contents of its own records, as well as those records of other courts); see also Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009) (noting that the court may also take judicial notice of factual information located in postings on government web sites).
On November 4, 1994, Petitioner filed a PCR application before the Jasper County Court of Common Pleas alleging, among other claims, trial errors, denial of due process, and ineffective assistance of counsel. (See Case No. 1994-CP-27-309.) Following an evidentiary hearing on March 20, 1995, the circuit court denied Petitioner's application and the Supreme Court of South Carolina dismissed Petitioner's subsequent petition for a writ of certiorari on November 8, 1996.
On December 10, 1997, Petitioner filed another civil action before the United States District Court for the District of South Carolina, this time seeking a tolling of the statute of limitations for filing a § 2254 petition. (See Case No. 3:97-cv-3816-MJP.) The district court dismissed Petitioner's action without prejudice on July 23, 1998.
On October 8, 1998, Petitioner filed a document captioned, “Petition for Writ of Habeas Corpus” in the Jasper County Court of Common Pleas. (See Case No. 1998-CP-27-267.) The State filed a return and motion to dismiss on March 4, 1999, after which Petitioner filed a reply. The circuit court then dismissed Petitioner's action, finding that he had failed to allege facts sufficient to show that other remedies, such as PCR, had been unavailable or inadequate to address his claims. The South Carolina Court of Appeals denied Petitioner's subsequent appeal on June 28, 2000, and the South Carolina Supreme Court denied his petition for a writ of certiorari on July 3, 2001.
On August 27, 2001, Petitioner filed another federal petition for a writ of habeas corpus pursuant to § 2254 renewing many of the same claims from his original petition, including trial errors, denial of due process and access to the courts, and ineffective assistance of counsel. (See Case No. 3:01-cv-3578-MJP.) Petitioner also alleged a claim of prosecutorial misconduct. The State filed a motion for summary judgement on January 30, 2002, and Petitioner filed a response in opposition on March 18, 2002. After reviewing the full briefings, the district court concluded that, while the petition was time-barred under the applicable statute of limitations, the merits of Petitioner's arguments likewise failed. The petition was therefore denied on October 11, 2002.
On or around November 7, 2012, Petitioner filed another document captioned, “Petition for Habeas Corpus” with the Jasper County Court of Common Pleas. (See Case No. 2012-CP-27-691.) On June 22, 2018, the State moved to dismiss the petition without prejudice, arguing that the circuit court did not have authority to consider Petitioner's claims. The court agreed, finding that Petitioner's factual and legal assertions could have been raised in a timely PCR action, such that he was procedurally barred from seeking a writ of habeas corpus from the circuit court. Rather, Petitioner's only means of obtaining state habeas relief was to file a petition before the Supreme Court of South Carolina. The circuit court therefore dismissed the petition on June 27, 2018. The South Carolina Court of Appeals dismissed Petitioner's subsequent appeal on February 6, 2019, and the Supreme Court of South Carolina denied his petition for a writ of certiorari on January 16, 2020.
It appears Petitioner then filed a petition for a writ of habeas corpus with the South Carolina Supreme Court, which was denied on or around June 2, 2021, for failure to demonstrate a constitutional violation shocking to the universal sense of justice. (See App. Case No. 2020-1078.) Petitioner then filed a petition for a writ of certiorari with the United States Supreme Court on July 20, 2021, and the Supreme Court denied the same on October 12, 2021. (See Op. No. 21-5554.)
It is against this background that Petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming that “prior actions in this court were inadequately adjudicated” and that “a miscarriage of justice has been caused.” (Dkt. No. 1 at 1.) Reiterating many of the same claims alleged in his previous actions, Petitioner asks that the Court “vacate” his 1992 criminal convictions and sentence and “restore all civil and legal rights, freedoms and liberties.” (Id. at 33.)
STANDARD OF REVIEW
Under the established local procedure in this judicial district, a careful review has been made of 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, Pub. L. No. 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); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); and Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
The narrow question before the Court is whether it “plainly appears” that Petitioner is not entitled to any relief. Rule 4, Rules Governing § 2254 Cases. If so, his petition must be dismissed; if not, the warden must respond. Id. Because Petitioner is a pro se litigant, his petition is accorded liberal construction. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon, 574 F.2d at 1151. Even under this less stringent standard, however, the Court cannot 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, 390-91 (4th Cir. 1990). Such is the case here.
DISCUSSION
I. Recharacterization of Petition Under 28 U.S.C. § 2254
As an initial matter, although Petitioner brings this action pursuant to 28 U.S.C. § 2241, his claims clearly fall under the purview of § 2254. Indeed, it is well-established in this district that, “regardless of how they are styled, federal habeas petitions of prisoners who are in custody pursuant to the judgment of a State court should be treated as applications under section 2254.” In Re Wright, 826 F.3d 774, 779 (4th Cir. 2016); Long v. Warden, Lieber Corr. Inst., No. 6:20-cv-197-TMC-KFM, 2020 WL 8922854, at *3 (D.S.C. Feb. 14, 2020) (“The majority trend in federal jurisprudence, including the Fourth Circuit, is that a state prisoner's challenge to the manner of execution of his sentence should be raised under § 2254.”), adopted, 2020 WL 8922858 (D.S.C. Mar. 6, 2020); see also United States v. Morgan, 473 F.Supp.3d 544, 546 (D.S.C. 2020) (noting the longstanding practice of classifying pro se pleadings from prisoners according to their contents, without regard to their captions). Because Petitioner is in custody pursuant to a state court judgment and seeks to challenge the validity of said convictions and sentence, the undersigned construes his petition as one raised under § 2254.
II. Successive Petition is Unauthorized and Subject to Summary Dismissal
Petitions filed pursuant to 28 U.S.C. § 2254 are subject to a successive authorization requirement under § 2244(b), which states that a petitioner must first obtain authorization from the appropriate court of appeals before filing a second or successive § 2254 application. See 28 U.S.C. § 2244(b)(3)(A); see also Rule 9, Rules Governing § 2254 Cases. To be considered successive, the second § 2254 habeas petition must be the second attack on the same conviction and/or sentence, and the first § 2254 habeas petition must have been finally adjudicated on the merits. See Griffin v. Padula, 518 F.Supp.2d 680, 687 (D.S.C. 2007) (referencing Slack v. McDaniel, 529 U.S. 473 (2000)); see also McClellan v. Warden of Lee Corr. Inst., No. 9:20-cv-1941-SAL-MHC, 2020 WL 8922899, at *4 (D.S.C. July 21, 2020) (noting that a petition is successive and requires authorization from the appropriate appellate court even if the petitioner is attempting to raise grounds not raised in the original petition), adopted, 2021 WL 1105041 (D.S.C. Mar. 23, 2021).
Here, Petitioner's most recent § 2254 petition (Case No. 3:01-cv-3578-MJP) was dismissed as untimely and, therefore, adjudicated on the merits, such that any subsequent § 2254 petition challenging the same 1992 convictions and/or sentence constitutes a second or successive petition under § 2244(b). See Griffin, 518 F.Supp.2d at 687 (explaining that dismissal based on the one-year statute of limitations is considered an adjudication on the merits for purposes of designating subsequent § 2254 petitions as successive). Consequently, Petitioner cannot pursue the instant petition without first receiving permission from the appropriate court of appeals. See In re Williams, 364 F.3d 235, 238 (4th Cir. 2004) (noting that 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).”).
Petitioner does not indicate that he has obtained permission from the Fourth Circuit Court of Appeals to file this successive petition, and a records check does not reflect any such authorization. In the absence of this required authorization, a district court has no jurisdiction to consider the merits of a successive habeas petition. See Burton v. Stewart, 549 U.S. 147, 153 (2007) (holding that petitioner's failure to obtain authorization to file a successive petition deprived the district court of jurisdiction to consider the successive petition). Because the present § 2254 petition constitutes an unauthorized successive petition, the Court cannot consider the merits of Petitioner's claims and must therefore dismiss this action in its entirety.
CONCLUSION
The undersigned therefore recommends that the Court summarily dismiss the petition, without prejudice and without requiring the warden to respond.
IT IS SO RECOMMENDED.