Keith v. Cartledge et al

Filing 18

ORDER adopting Report and Recommendations re 8 Report and Recommendation. The Petitioner's application for a writ of habeas corpus is dismissed. A certificate of appealability is denied. Signed by Honorable Richard M Gergel on 10/31/2012.(abuc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Trovon Keith, a.k.a. Trovon Aquarius
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Keith, Trovon A. Keith, and Travon Keith, )
Petitioner,
vs.
Warden Cartledge, Associate Warden
Mauney,
Respondents.

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Civil Action No.1: 12-cv-2406-RMG

ORDER

Trovon Keith, an inmate at the Perry Correctional Institute of the South Carolina
Department of Corrections, petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 72.02(S)(2)(c) DSC, this
matter was referred to the United States Magistrate Judge for all pretrial proceedings.
Keith filed this habeas petition on August 17,2012. (Dkt. No.1-I). The Magistrate
Judge issued an order on September 13, 2012 which directed the Clerk not to authorize the
issuance and service of process unless ordered otherwise by a United States District Judge, to
grant petitioner's motion to proceed in forma pauperis, to remind Petitioner of certain format and
mailing requirements, and to note that Petitioner receives the benefit of the holding in Houston v.
Lack, 487 U.S. 266 (1988) (prisoner's pleading was filed at the moment of transfer to prison

officials for delivery to the court). (Dkt. No.6 at 1-2). Also on September 13,2012, the
Magistrate Judge issued a Report and Recommendation that the petition be dismissed without
prejudice and without requiring a return filing from Respondents. (Dkt. No.8 at 4). Petitioner
then filed objections to the Magistrate's Report and Recommendation on October 23,2012.

(Dkt. No. 15).

As explained herein, this Court has reviewed the Record, agrees with and adopts the
Report and Recommendation, and therefore dismisses the petition.
Background
On April 7,2004, Petitioner was found guilty by jury in Horry County and convicted for
first degree criminal sexual conduct, first degree burglary, and kidnapping; Petitioner was then
sentenced to a total of ninety years of incarceration on the three convictions. (Dkt. No. 1 at 1).
Petitioner directly appealed to the South Carolina Court of Appeals and that court affirmed his
convictions on January 18, 2006. (Id at 2). Petitioner then filed for post-conviction relief in the
Horry County Court of Common Pleas and that application for relief was dismissed on
December 9, 2008. (Id) Petitioner then sought a writ of certiorari from the South Carolina
Supreme Court and that court denied issuance of the writ on August 18,2011. (Id at 3).
Petitioner then filed a petition in the United States District Court for the District of South
Carolina seeking a writ of habeas corpus on these convictions on September 1, 2011. Id at 11;
CIA No.1 :11-cv-2477-RMG, Dkt No.1-I.I After the state filed a return and motion for
summary judgment, that petition was dismissed on summary judgment on August 1,2012. Keith

v. Warden, Lieber Corr. Inst., CIA No. 1:11-2477-RMG, 2012 WL 3134282 (D.S.C. Aug. 1,
2012). Petitioner filed a notice of appeal in the prior habeas case on August 24,2012. Id at Dkt.
No. 57.
LawlAnalysis
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making
1 This court may take judicial notice of its records. See, e.g., Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239
(4th Cir. 1989) (noting that the most frequent use ofjudicial notice is notice of the content of the court's own

a de novo determination of those portions of the Report and Recommendation to which specific
objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). This
Court may also "receive further evidence or recommit the matter to the magistrate judge with
instructions." ld. In the absence of specific objections to the Report and Recommendation, this
Court is not required to give any explanation for adopting the recommendation. Camby v. Davis,
718 F.2d 198,200 (4th Cir. 1983).
After reviewing the record, the applicable legal authorities, and the Report and
Recommendation of the Magistrate Judge, the Court agrees with and wholly adopts the
conclusions of the Magistrate Judge. Petitioner was convicted and sentenced in Horry County,
South Carolina. Upon exhaustion of his state remedies, Petitioner filed a prior petition seeking a
writ of habeas corpus which was dismissed on the merits. Because the petitioner has previously
sought a writ of habeas corpus which was dismissed on the merits, the instant petition is deemed
successive. The District Court has no jurisdiction to review a successive habeas petition unless
the District Court is given review authority by the Fourth Circuit Court of Appeals. 28 U.S.C. §
2244(b)(3)(A). The Fourth Circuit Court of Appeals has not given review authority to this court
in this matter, so this court is without jurisdiction to consider the instant petition. Since the court
is without jurisdiction, the petition is denied.
Petitioner's response to the Magistrate's Report and Recommendation does not make any
specific objection to the findings or conclusions of the Magistrate.

(Dkt. No. 15).

Rather,

Petitioner describes the obstructive practices of corrections officers which frustrate his attempts
to litigate. Further, Petitioner states he is waiting for a response from the Fourth Circuit to his

request for a pre-filing authorization pursuant to 28 V.S.C. § 2244(b)(3). The Court finds these
objections provide no basis for departing from the Magistrates' conclusions and findings.
Since Petitioner's application is denied, requiring Respondent to file a return would be an
unnecessary burden on Respondent. See Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) ("the
District Court has a duty to screen out a habeas corpus petition which should be dismissed for
lack of merit on its face"); Toney v. Gammon, 79 F.3d 693, 697 (8th Cir. 1996) ("a petition may
be summarily dismissed if the record clearly indicates that the petitioner's claims are either
barred from review or without merit"). Respondent is not required to file a return.
CONCLUSION

The Court, after a thorough review of the Report and Recommendation of the Magistrate
Judge and the relevant case law, finds the Magistrate applied sound legal principles to the facts
of this case. Therefore, this Court adopts the Magistrate Judge's Report and Recommendation as
the Order of this Court. The Petitioner's application for a writ of habeas corpus (Dkt. No.1) is
DISMISSED and respondent is not required to file a return.
Certificate of Appealability

The governing law provides that:
(c)(2) A certificate of appealability may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issue or
issues satisfy the showing required by paragraph (2),
28 V.S.C. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable jurists
would find this court's assessment of his constitutional claims debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. See Miller-El v.
Cockrell, 537 V.S. 322,336 (2003); Slack v. McDaniel, 529 V.S. 473, 484 (2000); Rose v. Lee,

252 F.3d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate
of appealability has not been met. Therefore, a certificate of appealability is DENIED.
AND IT IS SO ORDERED.

United States District Court Judge
October .J 2012
Charleston, South Carolina