Opinion
2:21-cv-02025-RMG-MGB
08-23-2021
Demetrius Jarod Smalls, #286806, Petitioner, v. Director B. Stirling and Warden K. Sharpe, [1] Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE.
Demetrius Jarod Smalls (“Petitioner”), a state prisoner proceeding pro se and in forma pauperis, 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. As discussed in greater detail below, the undersigned recommends that the petition be summarily dismissed without prejudice and without requiring Respondent to file a return.
BACKGROUND
In February 2006, Petitioner was indicted by a Charleston County grand jury for two counts of armed robbery (2006-GS-10-1253, 1256); assault and battery with intent to kill (“ABWIK”) (2006-GS-10-1255); and kidnapping (2006-GS-10-1254). On June 26, 2007, Petitioner pled guilty as indicted and was sentenced to a total of twenty-five years' imprisonment.
The undersigned takes judicial notice of the records filed in Petitioner's underlying criminal case, his post-conviction relief proceedings, and his 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). More specifically, much of the factual background herein is taken from Petitioner's prior habeas corpus proceedings before this Court, Nos. 2:13-cv-2651-RMG and 2:15-cv-2782-RMG.
Petitioner's First PCR Application
Although Petitioner did not file a direct appeal, he filed an application for post-conviction relief (“PCR”) on March 15, 2010, alleging ineffective assistance of counsel and an involuntary guilty plea. (No. 2010-CP-10-2100.) The PCR court denied Petitioner's application with prejudice on October 18, 2010, citing, among other reasons, that Petitioner had initiated the action two years after the applicable statute of limitations had expired. Petitioner later appealed the PCR court's decision by way of a petition for writ of certiorari, which the South Carolina Court of Appeals ultimately denied on October 31, 2013. (App. No. 2010-177086.)
Petitioner's Second and Third PCR Applications
On February 5, 2013, Petitioner filed a second PCR application. (No. 2013-CP-10-719.) He then filed a third PCR application on March 21, 2014. (No. 2014-CP-10-1914.) The PCR court summarily denied Petitioner's second application on June 2, 2015, and his petition for rehearing on September 9, 2015. The PCR court likewise denied his third application on April 20, 2016.
Petitioner's First and Second Habeas Corpus Petitions
While the second PCR application was pending, Petitioner filed his first federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging the following grounds for relief: fraud in prior state court actions involving certain unrelated traffic violations; misrepresentations by the solicitor and police in carrying out Petitioner's arrest; and ineffective assistance of counsel. (No. 2:13-cv-2651-RMG.) The district court denied the habeas petition on July 18, 2014, finding that Petitioner's claims were barred by the applicable one-year statute of limitations for habeas relief and, in any case, without merit.
On July 15, 2015, Petitioner filed a second habeas action pursuant to § 2254, once again alleging ineffective assistance of counsel. (No. 2:15-cv-2782-RMG.) The district court denied the petition on October 14, 2015, explaining that Petitioner had not been granted permission by the Fourth Circuit Court of Appeals to file a second or successive petition for a writ of habeas corpus as required under 28 U.S.C. § 2244.
It is against this procedural background that Petitioner now attempts to challenge his conviction and sentence under 28 U.S.C. § 2241. Although much of his sixty-page filing is comprised of rambling, incoherent allegations, Petitioner seems to base the instant petition on the South Carolina legislature's repeal of S.C. Code § 16-3-620, which established the common-law offense of ABWIK for which he was convicted. See S.C. Code § 16-3-620 (1976), repealed by Act No. 273 § 7.A, at 13 (2010). Petitioner appears to allege that the repeal of this statute “eradicated” his conviction and sentence, such that his current incarceration constitutes illegal forced labor, hostage-taking, kidnapping, and slavery. (See Dkt. No. 1; Dkt. No. 1-1 at 7-11.) While Petitioner asserts that he is entitled to immediate release from custody, he also seems to request a new trial in an apparent attempt to withdraw his guilty plea. (See Dkt. No. 1 at 7; Dkt. No. 1-1 at 14-18; see also Dkt. No. 1-2 at 16.)
The undersigned notes that Petitioner's argument here appears to be premised, at least in part, on his misinterpretation of a letter provided by the Charleston County Clerk of Court. The letter, which is dated March 4, 2020, states that the Office of the Clerk of Court cannot file Petitioner's most recent PCR motion and, “[b]esides, the indictment numbers given have already been disposed of.” (Dkt. No. 1-2 at 23.) Petitioner seems to equate the term “disposed of” with “dismissed” or “vacated.” (See Dkt. No. 1-1 at 8-11.) However, the “disposition” of an indictment simply indicates that the court has fully adjudicated the charge and reached a determination. In Petitioner's case, the relevant indictments (2006-GS-10-1253-1256) were “disposed of” on June 26, 2007, pursuant to his guilty plea. See https://jcmsweb.charlestoncounty.org/PublicIndex/(limiting search to Indictment Nos. 2006-GS-10-01253-01256) (noting “Pled Guilty” under “Disposition”). Thus, the undersigned clarifies that contrary to Petitioner's contentions, there is no indication that his conviction and sentence were in fact “eradicated” as he asserts.
STANDARD OF REVIEW
Under the established local procedure in this judicial district, a careful review has been made of Petitioner's pro se 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); see also Long v. Warden, Lieber Corr. Inst., No. 6:20-cv-197-TMC-KFM, 2020 WL 8922854, at *3 (D.S.C. Feb. 14, 2020), adopted by, 2020 WL 8922858 (D.S.C. Mar. 6, 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.”); 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 his conviction and continued incarceration based on the repeal of S.C. Code § 16-3-620, the undersigned construes his petition as one raised under 28 U.S.C. § 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), adopted by, 2021 WL 1105041 (D.S.C. Mar. 23, 2021) (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).
As this Court previously explained in No. 2:15-cv-2782-RMG, Petitioner's first § 2254 petition was adjudicated on the merits, such that any subsequent § 2254 petition challenging the same convictions and/or sentence-like the petition here-constitutes a second or successive petition under § 2244(b). (See No. 2782, Dkt. No. 10 at 2.) 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).”).
The dismissal of a § 2254 petition as untimely constitutes a consideration of that petition “on the merits.” See McClellan v. Warden of Lee Corr. Inst., No. 9:20-cv-1941-SAL-MHC, 2020 WL 8922899, at *3 n.6 (D.S.C. July 21, 2020), adopted by, 2021 WL 1105041 (D.S.C. Mar. 23, 2021) (collecting cases).
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. To the contrary, it appears that on April 12, 2021, shortly before the initiation of this habeas action, Petitioner submitted a motion to the Fourth Circuit seeking authorization to file a successive application under 28 U.S.C. § 2254. (See App. No. 21-160.) The Fourth Circuit denied his request by order dated April 26, 2021.
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.
It is worth noting that even if the Court could consider Petitioner's claims here, the petition would likely be dismissed on the merits in any case. As stated above, Petitioner argues that he was “relieved” of his conviction and sentence based on the repeal of S.C. Code § 16-3-620. However, the South Carolina legislature did not repeal the ABWIK statute until 2010, several years after Petitioner plead guilty to the same and failed to file a timely appeal. Accordingly, the repeal of S.C. Code § 16-3-620 does not affect Petitioner's conviction and/or sentence. See, e.g., Washington v. Moseley, No. 5:18-cv-1292-HMH-KDW, 2018 WL 6112364, at *3 (D.S.C Aug. 13, 2018), adopted by, 2018 WL 5095148 (D.S.C. Oct. 19, 2018), aff'd, 771 Fed.Appx. 193 (4th Cir. 2019) (explaining that repeal of S.C. Code § 16-3-620 did not impact petitioner's sentence where he pled guilty to ABWIK long before the repeal went into effect); see also U.S. ex re l. Randall v. U.S. Marshall for E. Dist. of N.Y., 143 F.2d 830, 831 (2d Cir. 1944) (“When the defendant was sentenced and the judgment against him was affirmed and no application for a writ of certiorari was made within the period allowed by statute judicial action became final and the repeal of the prohibition amendment did not under the following authorities affect the rights of the parties.”).
CONCLUSION
The undersigned therefore RECOMMENDS that the Court summarily dismiss the petition, without prejudice and without requiring the Respondent to file a return.
IT IS SO RECOMMENDED.
The parties' attention is directed to an important notice on the following 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).