Hartwell v. Ozmit

Filing 15

ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 8 Report and Recommendations, the petition is dismissed without prejudice and without issuance and service of process and the court declines to issue a certificate of appealability, Motions terminated: denying 12 MOTION to Appoint Counsel filed by Alfonso Hartwell, denying 13 MOTION to Stay filed by Alfonso Hartwell. Signed by Honorable Joseph F Anderson, Jr on 1/29/2010. (jpet, )

U N I T E D STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA

) ) P e t i t io n e r , ) v. ) ) Jo n Ozmint, ) ) R e sp o n d e n t. ) _______________________________________)

A lf o n s o Hartwell,

C /A No. 0:09-3065-JFA-PJG

ORDER

T h e pro se petitioner, Alfonso Hartwell, is an inmate with the South Carolina D e p a rtm e n t of Corrections at the Lieber Correctional Institution. He has filed this petition u n d e r 28 U.S.C. § 2254. T h e Magistrate Judge assigned to this action 1 has prepared a thorough Report and R e c o m m e n d a tio n wherein she suggests that this is Mr. Hartwell's second §2254 petition and th a t this court cannot consider a second or successive petition without a pre-filing a u th o r i z a tio n from the Fourth Circuit Court of Appeals. The Report sets forth in detail the re lev a n t facts and standards of law on this matter, and the court incorporates such without a r e c it a ti o n . T h e petitioner was advised of his right to file objections to the Report and

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

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R e c o m m e n d a tio n , which was entered on the docket on December 4, 2009. While he filed t i m e l y objections to the Report, the objections appear to simply restate the claims in his p e t it io n . Further, this court is unpersuaded by petitioner's contentions that he was not aware o f the pre-filing authorization rule, that he does not have access to a law library, and that he is a layman to the law. A lte rn a tiv e ly, petitioner asks this court to stay this action for sixty days until he can re q u e st permission from the Fourth Circuit Court of Appeals to file a successive petition. T h e petitioner argues that although this is his second petition, it is not successive b e c au s e the issue contained in the present petition is an issue which the facts could not have b e e n discovered previously through due diligence. Specifically, petitioner contends that his u n d e rlyin g state drug conviction was enhanced by a 1992 drug charge in New York which was d is m is s e d in January 2006. U n d e r the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") and 2 8 U.S.C. § 2244(b)(3)(A), a prospective applicant must file in the court of appeals a motion f o r leave to file a second or successive habeas application in the district court. It appears from th e record before this court, that the petitioner has failed to obtain prior authorization from the F o u rth Circuit Court of Appeals. Accordingly, this court does not have the appropriate ju ris d ic tio n to consider the petition. A f te r carefully reviewing the applicable law, the record in this case, the Report and R e c o m m e n d a tio n , and the petitioner's objections thereto, the court finds the Magistrate

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J u d g e 's recommendation fairly and accurately summarizes the facts and applies the correct p rin c ip le s of law. The court, therefore, adopts the recommendation of the Magistrate Judge in full and incorporates this Report by specific reference. Accordingly, the petition is dismissed without prejudice and without issuance and s e rv i c e of process.2 P e titio n e r's request to stay this action pending a ruling from the Fourth Circuit is d e n ied , and his motion for appointment of counsel is denied as well. IT IS SO ORDERED.

J a n u a ry 29, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

On December 1, 2009, the Rules governing Section 2254 and 2255 cases in the United States District Courts were amended to require that the district court issue or deny a certificate of appealability when a final ruling on a habeas petition is issued. See Rule 11(a) of the Rules governing 28 U.S.C. § 2254 and 2255. The court has reviewed its order and pursuant to Rule 11(a) of the Rules Governing Section 2254 and Section 2255 cases, declines to issue a certificate of appealability as Petitioner has not made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong)(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

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