Wilson v. State of South Carolina

Filing 7

REPORT AND RECOMMENDATION that the petition for a writ of habeas corpus be dismissed without prejudice and without issuance and service of process, re 1 Petition for Writ of Habeas Corpus filed by Tony Tyrone Wilson, Objections to R&R due by 3/16/2009. Signed by Magistrate Judge Joseph R McCrorey on February 25, 2009. (kbos)

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA Tony Tyrone Wilson, #192143,
Petitioner,

vs. Warden, Broad River Correctional Institution,
Respondent.

) C/A No. 3:09-303-SB-JRM ) ) ) ) Report and Recommendation ) ) ) )

________________________________________________ A Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 has been submitted to the Court pro se by a state prison inmate.1 This is the second § 2254 petition filed in this Court by Petitioner relating to his criminal convictions and sentences for several crimes entered on a guilty plea taken in Richland County in January 1998. Petitioner's initial § 2254 petition was filed in August 2000, and was considered on the merits but decided adversely to Petitioner in July 2001. See Wilson v. S.C., Civil Action No. 9:002617-SB (Entries 14, 16, & 17). Petitioner's appeal from the dismissal of his initial § 2254 petition was dismissed by the Fourth Circuit Court of Appeals in November and December of 2001. (Id. Entries 19 & 20). It appears from the Petition filed in this case that Petitioner filed at least two additional, unsuccessful post-conviction-relief cases (PCR) in the Court of Common Pleas of Richland County after his unsuccessful initial federal habeas action referenced above. See Richland County Case nos. 98-CP-40-42-77; 2007-CP40-2047. It is unclear from the pleadings whether the result in the 1998 PCR case was presented for review by the state Court of Appeals or Supreme Court; however, it is clear that the 2007 PCR, which was

Pursuant to 28 U.S.C. §636(b)(1)(B), and D.S.C. Civ. R. 73.02(B)(2)(c), this magistrate judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the District Court. See also 28 U.S.C. § § 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).

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dismissed as successive, was presented to the state Court of Appeals, which denied review of the PCR court's final judgment. Thereafter, Petitioner submitted his second federal habeas corpus petition to this Court, raising, essentially, the same the grounds previously considered and rejected by this Court in 2001(lack of subject matter jurisdiction, involuntary plea; ineffective counsel due to lack of mental competency investigation). None of the asserted grounds for habeas relief appear to have arisen after the 1998 convictions, and all appear to have been available to Petitioner at the time he filed his initial § 2254 case in this Court. There is no indication anywhere in the pleadings that Petitioner requested and received permission from the Fourth Circuit Court of Appeals to file this, his second federal habeas corpus case in this Court. Under established local procedure in this judicial district, a careful review has been made of the pro se Petition filed in this case. The review was conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Anti-Terrorism and Effective Death Penalty Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979). This Court is required to construe pro se petitions liberally. Such pro se petitions are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319 (1972). When a federal court is evaluating a pro se petition the petitioner's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of

Social Servs., 901 F.2d 387 (4th Cir. 1990). However, even under this less stringent standard, the Petition submitted in this case is subject to summary dismissal. If a petition is frivolous or patently absurd on its face, entry of dismissal may be made on the court's own motion without the necessity of requiring a responsive pleading from the government. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970). The issue of successiveness of a habeas petition may be raised by the court sua sponte. Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997); Anderson v. Bell, No. 3:06-349, 2006 WL 2559524 (M.D. Tenn. June 15, 2006). The Petition filed in this case appears to be a second and successive petition since it raises claims against the validity of Petitioner's 1998 convictions and sentences which could have been brought in the first habeas case. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005). As stated above, Petitioner's procedural history in this Court shows that Petitioner has already filed one petition for writ of habeas corpus based on the same Richland County criminal convictions and life sentences. Also, as stated above, that petition was considered by this Court on the merits, was dismissed with prejudice, and Petitioner's appeal was dismissed by the Fourth Circuit. Additionally, no authorization was sought from the Fourth Circuit before this case was filed. Chapter 153 of Title 28 of the United States Code provides a statutory framework for federal postconviction relief from judgments of conviction entered in federal and state courts. Under this framework, individuals convicted of crimes in state courts seek federal habeas corpus relief through 28 U.S.C. § 2254. See In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (footnote omitted). On April 24, 1996, the President of the United States signed into law the Anti-Terrorism and Effective Death Penalty Act of 1996 (the "AEDPA") which, in part, amended Chapter 153. The AEDPA effected a number of substantial changes regarding the availability of federal post-conviction relief to individuals convicted of crimes in federal and state courts. Of particular importance here are the provisions of the AEDPA codifying and extending judicially constructed limits on the consideration of second and successive applications for collateral relief.

See Felker v. Turpin, 518 U.S. 651, 657 (1996). Under the AEDPA, an individual may not file a second or successive § 2254 petition for a writ of habeas corpus (or the equivalent thereof) or a second or successive § 2255 motion to vacate sentence without first receiving permission to do so from the appropriate circuit court of appeals. See In re Vial, 115 F.3d at 1194.2 The "gatekeeping" mechanism created by the AEDPA added section 2244(3)(A) to provide: Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. Because the Petition submitted in this case is clearly successive and Petitioner did not obtain authorization from the Fourth Circuit Court of Appeals to file it, this Court does not have jurisdiction to consider the grounds raised and the Petition is subject to summary dismissal without service on the Respondent. See Romandine v. U. S., 206 F.3d 731, 734 (7th Cir. 2000); U.S. v. Key, 205 F.3d 773, 774 (5th Cir. 2000); Hernandez v. Campbell, 204 F.3d 861, 866 (9th Cir. 2000); U. S. v. Barrett, 178 F.3d 34, 41 (1st Cir. 1999); Lopez v. Douglas, 141 F.3d 974, 975-76 (10th Cir. 1998); Williams v. Hopkins, 130 F.3d 333, 336 (8th Cir. 1997); Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997). RECOMMENDATION Accordingly, it is recommended that the Petition for a Writ of Habeas Corpus in this case be dismissed without prejudice and without issuance and service of process upon Respondent. See Toney v. Gammon, 79 F.3d 693, 697 (8th Cir. 1996) (a petition may be summarily dismissed if the record clearly

Petitioner may be able to present a claim for the first time in a successive habeas petition where the claim relies on a new rule of constitutional law, see 28 U.S.C. § 2244(b)(2)(A), or, if the claim is based on newly discovered evidence, where the Petitioner can make a prima facie showing of both cause and prejudice within the meaning of § 2244(b)(2)(B)(i) and § 2244(b)(2)(B)(ii). See Evans v. Smith, 220 F.3d 306, 323 (4th Cir. 2000). Petitioner is advised that "[t]he grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." § 2244(b)(3)(E).

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indicates that petitioner's claims are either barred from review or without merit); Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (federal district courts have duty to screen habeas corpus petitions and eliminate burden placed on respondents caused by ordering an unnecessary answer or return). Petitioner's attention is directed to the important notice on the next page.

Joseph R. McCrorey United States Magistrate Judge February 25, 2009 Columbia, South Carolina

Notice of Right to File Objections to Report and Recommendation The parties are advised that they may file specific written objections to this Report and Recommendation with the District Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In the absence of a timely filed objection, a district court judge need not conduct a de novo review, but instead 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 & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005). Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed. R. Civ. P. 6(a) & (e). Filing by mail pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections to: Larry W. Propes, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201 Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).