Daniels v. Cohen

Filing 27

ORDER adopting Report and Recommendations re 22 Report and Recommendation. Signed by Honorable Patrick Michael Duffy on 09/29/2016.(adeh, ) (Main Document 27 replaced on 9/28/2016) (egra, ). Modified on 9/28/2016 to correct date (egra, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Brian Daniels,

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Petitioner,
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v.
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Levern Cohen,
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Respondent.
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____________________________________)

C.A. No.: 0:16-cv-753-PMD-PJG
ORDER

This matter is before the Court on Petitioner Brian Daniels’ objections to a Report and
Recommendation (“R & R”) filed by United States Magistrate Judge Paige J. Gossett (ECF Nos.
24 & 22). In her R & R, the Magistrate Judge recommends that this Court dismiss Petitioner’s
habeas petition because the United States Court of Appeals for the Fourth Circuit has not
permitted him to file it. For the reasons stated herein, the Court overrules Petitioner’s objections
and dismisses this matter for lack of jurisdiction.
BACKGROUND
Petitioner is serving a thirty-year prison sentence for his 1998 manslaughter conviction in
South Carolina state court. After pursuing collateral relief in state court, Petitioner filed a
petition in this Court in 2009, pursuant to 28 U.S.C. § 2254, challenging his conviction and
sentence. This Court dismissed the motion as time-barred. Daniels v. Padula, No. 0:09-cv-755PMD, 2010 WL 1051191 (D.S.C. Mar. 19, 2010), appeal dismissed, 385 F. App’x 341 (4th Cir.
2010) (per curiam).
In his current petition, Petitioner again seeks relief under § 2254. He challenges a 2001
disciplinary sanction that the state prison system imposed upon him for an escape infraction.

Conducting an initial review of the petition, the Magistrate Judge found it was successive
under 28 U.S.C. § 2244(b). Because the Fourth Circuit has not given Petitioner permission to
file a successive § 2254 petition, the Magistrate Judge concluded the petition should be
dismissed.
Petitioner timely filed objections to the R & R. This matter is therefore ripe for review.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The R & R has no
presumptive weight, and the responsibility for making a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). Parties may make written objections to
the R & R within fourteen days after being served with a copy of it. 28 U.S.C. § 636(b)(1). This
Court must conduct a de novo review of any portion of the R & R to which a specific objection is
made, and it may accept, reject, or modify the Magistrate Judge’s findings and recommendations
in whole or in part. Id. Additionally, the Court may receive more evidence or recommit the
matter to the Magistrate Judge with instructions. Id. A party’s failure to object is taken as the
party’s agreement with the Magistrate Judge’s conclusions. See Thomas v. Arn, 474 U.S. 140
(1985). Absent a timely, specific objection—or as to those portions of the R & R to which no
specific objection is made—this Court “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 &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory
committee’s note).
DISCUSSION
Petitioner argues the Magistrate Judge misconstrued his claim as a second challenge of
his 1998 manslaughter conviction and sentence. Rather, Petitioner contends, his current claim

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challenges the manner in which the state is executing that sentence—“a totally different
argument” than his first habeas claim. (Objs., ECF No. 24, at 2.) Accordingly, Petitioner argues
the Magistrate Judge erred in concluding that his current claim is successive.
As to the first component of Petitioner’s objections, the Magistrate Judge did not
misconstrue Petitioner’s claim. The Magistrate Judge described the claim as a second challenge
of Petitioner’s “confinement related to” the 1998 conviction.

The Magistrate Judge then

accurately described the crux of Petitioner’s claim: that the “disciplinary infraction . . . was
imposed in violation of the due process clause.” (R & R, ECF No. 22, at 1). Because the
Magistrate Judge correctly understood the nature of Petitioner’s claim, the Court overrules
Petitioner’s objection.
Petitioner’s larger contention is that his claim is not successive and thus he did not need
the Fourth Circuit’s permission in order to file his petition. A recent Fourth Circuit opinion
addresses the question underlying Petitioner’s objection: when, if ever, is a state prisoner’s
challenge to the execution of his sentence successive under § 2244(b)? See In re Wright, 826
F.3d 774 (4th Cir. 2016). After confirming that § 2244(b)’s restrictions on second or successive
petitions apply to petitions challenging the execution of state sentences, id. at 779, the Fourth
Circuit indicated that courts should use the abuse-of-the-writ doctrine to determine whether such
a petition is second or successive, id. at 783, 784. Under the doctrine, “new claims raised in
subsequent habeas petitions [are] ‘abusive’”—and thus barred—“if those claims were available
to the petitioner at the time of a prior petition’s filing.” Id. at 784. That doctrine “is not confined
to instances where litigants deliberately abandon claims; it also applies to instances where
litigants, through inexcusable neglect, fail to raise available claims.” Id. (citation and quotation
marks omitted).

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When Petitioner filed his previous § 2254 petition in 2009, he could have challenged his
2001 disciplinary infraction. However, he did not, and nothing suggests that Petitioner’s failure
to raise the claim in 2009 is excusable. The Court finds Petitioner’s current § 2254 petition to
be abusive and, therefore, successive. Consequently, the Court overrules Petitioner’s objection
and adopts the Magistrate Judge’s ultimate conclusion that Petitioner’s current § 2254 petition
was filed without the Fourth Circuit’s permission.
District courts lack jurisdiction to entertain unauthorized successive habeas petitions.
United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003). Thus, the Court will dismiss the
petition for lack of jurisdiction.
CONCLUSION
For the foregoing reasons, it is ORDERED that Petitioner’s objections are
OVERRULED, that the R & R is ADOPTED, and that his petition is DISMISSED without
prejudice. 1
AND IT IS SO ORDERED.

September 28, 2016
Charleston, South Carolina

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1.
The Court declines to issue a certificate of appealability. Petitioner has not made a substantial showing of a
denial of a constitutional right. See 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); Slack v. McDaniel, 529 U.S. 474, 484 (2000) (holding
that when relief is denied on procedural grounds, a petitioner must establish both that the correctness of the
dispositive procedural ruling is debatable, and that the petition states a debatably valid claim of the denial of a
constitutional right).

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