Harris v. South Carolina Dept of Correction

Filing 17

OPINION AND ORDER adopting the Report and Recommendation and dismissing Petitioner's 1 § 2254 claim without prejudice and without requiring the Respondent to file a return. IT IS FURTHER ORDERED that, with respect to Petitioner's § 2254 claim, a certificate of appealability is denied. IT IS FURTHER ORDERED that Petitioner's 16 motion to amend is granted and this matter is recommitted to the magistrate judge for further consideration. Signed by Honorable Henry M. Herlong, Jr. on 6/6/2016. (bgoo) Modified to correct text on 6/7/2016. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Stefen E. Harris,
Petitioner,
vs.
David Dunlap, Warden,
Respondent.

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C.A. No. 0:16-858-HMH-PJG
OPINION & ORDER

This matter is before the court with the Report and Recommendation of United States
Magistrate Judge Paige J. Gossett, made in accordance with 28 U.S.C. § 636(b) and Local Civil
Rule 73.02 of the District of South Carolina.1 Stefen E. Harris (“Harris”) is a state prisoner
seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. In her Report and Recommendation,
Magistrate Judge Gossett recommends summarily dismissing the petition without prejudice and
without requiring the Respondent to file a return, unless Harris files an amended petition under
28 U.S.C. § 2241 within fourteen days of the date of the Report and Recommendation.
On May 31, 2016, Harris filed a motion to amend his petition “pursuant to . . . § 2241 to
attack the execution of his sentence.” (Mot. Amend 1, ECF No. 16.) In addition, Harris filed
objections to the Report and Recommendation in which he argues that his § 2254 petition is not a
second or successive petition. Harris has had a prior § 2254 petition challenging his convictions.
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The recommendation has no presumptive weight, and the responsibility for making a
final determination remains with the United States District Court. See Mathews v. Weber, 423
U.S. 261, 270 (1976). The court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific objection is made. The court may
accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge
or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
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Harris v. State of S.C., C/A No. 9:01-3994. Therefore, the § 2254 petition is successive and he
has not obtained authorization from the United States Court of Appeals for the Fourth Circuit to
file a successive petition. 28 U.S.C. § 2244(b); In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997).
Thus, Harris’s § 2254 petition is subject to dismissal. However, the court grants Harris’s motion
to amend his petition to file a § 2241 petition and this matter is recommitted to the magistrate
judge for further consideration. Further, the court adopts the Report and Recommendation to the
extent it is consistent with this order.
It is therefore
ORDERED that Harris’s § 2254 claim is dismissed without prejudice and without
requiring the Respondent to file a return. It is further
ORDERED that with respect to his § 2254 claim, a certificate of appealability is denied
because Harris has failed to make “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). It is further
ORDERED that Harris’s motion to amend, docket number 16, is granted and this matter
is recommitted to the magistrate judge for further consideration.
IT IS SO ORDERED.

s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
June 6, 2016

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