Johnson v. McFadden

Filing 17

ORDER adopting 12 Report and Recommendation; denying Petitioner's 15 Motion for Certificate of Appealability as moot; and denying Petitioner's 16 Motion to Stay as moot. A certificate of appealability is denied. Signed by Honorable Richard M Gergel on 5/6/2016. (mwal)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Nathaniel Johnson, Jr., #211574
Petitioner,

v.
Warden Joseph McFadden,
Respondent.

)
)
)
)
)
)
)
)
)

Civil Action No.: 1: 16-cv-834-RMG

ORDER

This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge (Dkt. No. 12), recommending that the petition be dismissed as a successive
petition. For the reasons stated below, the Court ADOPTS the R & R and DISMISSES the
Petition.
Petitioner was convicted of criminal sexual conduct in the first degree and kidnapping on
March 14, 2007. (Dkt. No. 1 at 1). He filed his first petition for

fed~ral

habeas relief with regard

to these convictions on July 9, 2013. Johnson v. McFadden, 1: 13-cv-1794-RMG ("Johnson f'),
Dkt. Nos. 1, 3. In Johnson I, the Court granted Respondent's motion for summary judgment
finding all but one claim procedurally barred and finding that Petitioner had not satisfied either
prong of Strickland with regard to the one ineffective assistance of counsel claim reached on the
merits. Id., Dkt. No. 44 (D.S.C. May 12,2014). Petitioner filed a second petition on September
8,2015. Johnson v. McFadden, 1:15-cv-03611-RMG ("Johnson If'), Dkt. No.1. I Johnson II,

the Court dismissed the second petition as a successive § 2254 petition. Id., Dkt. No. 22 (D.S.C.
Dec. 21, 2015). Petitioner filed his third petition on March 14,2016. (Dkt. No.1).
In his objections to the R & R, Petitioner states that he «believes this petition to be his
first[] and opposes the fact that it may be his third." (Dkt. No. 14 at 5). The reasons for

Petitioner's belief are unclear, but this Court cannot consider a second or successive § 2254
petition unless Petitioner obtains a Pre-Filing Authorization from the Fourth Circuit under 28
U.S.C. § 2244(b)(3). He has not done so. Therefore, the Court ADOPTS the R & R (Dkt. No.
12), DISMISSES the petition, and DENIES Petitioner's pending motions as moot (Dkt. Nos.
15, 16).
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 U.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 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,
252 F.3d 676,683 (4th Cir. 2001). In this case, the legal standard for the issuance ofa certificate
of appealability has not been met. Therefore, a certificate of appealability is DENIED.
AND IT IS SO ORDERED.

Richard Mar
gel
United States District Court Judge
May b,2016
Charleston, South Carolina

2