Boling v. FCI Estill

Filing 19

ORDER RULING ON REPORT AND RECOMMENDATION: This Order adopts the conclusion of the Report 12 that Petitioner's claim should be dismissed, but dismisses the Petition without prejudice to Petitioner's right to petition the Fourth Circuit for permission to file a second or successive petition. For the reasons stated in the Report 12 , this petition is dismissed without prejudice. Signed by Honorable Cameron McGowan Currie on 12/28/2016. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Oliver M. Boling,

Civil Action No. 4:16-3227-CMC
Petitioner,

vs.

OPINION and ORDER

Warden (F.C.I.) Estill,
Respondent.
This matter is before the court on Petitioner’s pro se application for writ of habeas corpus
filed in this court pursuant to 28 U.S.C. § 2241.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(c), DSC, this
matter was referred to United States Magistrate Judge Thomas E. Rogers, III, for pre-trial
proceedings and a Report and Recommendation (“Report”).

On November 15, 2016, the

Magistrate Judge issued a Report recommending that the petition for habeas corpus be dismissed
with prejudice as successive, without requiring Respondent to file a return. ECF No. 12. The
Magistrate Judge advised Petitioner of the procedures and requirements for filing objections to
the Report and the serious consequences if he failed to do so. The Report was sent to Petitioner
on November 15, 2016. ECF No. 13. On November 29, 2016, the clerk was notified that
Petitioner had not received the Report, and mailed another copy. ECF No. 14. Petitioner
notified the clerk that he received the Report on December 5, 2016, and so was allowed until
December 22, 2016 to file any objections. ECF No. 15. On December 19, 2016, Petitioner’s
objections were filed. ECF No. 17.
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the

court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a 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 to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an
objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(stating that “in the absence of a timely filed objection, a district court 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.”) (citation omitted).
After reviewing the record of this matter, the applicable law, the Report and
Recommendation of the Magistrate Judge, and Petitioner’s objections de novo, the court agrees
with the conclusions of the Magistrate Judge. Accordingly, the court adopts and incorporates the
Report and Recommendation by reference in this Order.1
Petitioner’s objections are without merit. First, he objects to the categorization of his
Petition as one under § 2254 instead of § 2241 of Title 28. However, as correctly analyzed by
the Magistrate Judge, Fourth Circuit precedent clearly precludes this argument. See In re:
Wright, 826 F.3d 774 (4th Cir. 2016). Under Wright, the instant petition must be one pursuant to
§ 2254 and the attendant requirements of § 2244.

1

This Order adopts the conclusion of the Report that Petitioner’s claim should be dismissed, but
dismisses the Petition without prejudice to Petitioner’s right to petition the Fourth Circuit for
permission to file a second or successive petition.
2

Second, he objects to the conclusion that the instant petition is second or successive
because “it raises claims that could have been raised in prior petitions.” ECF No. 12 (citing
Wright, 826 F.3d at 783-74). As recognized by the Magistrate Judge, § 2244 does not provide a
chance to bring any claim at any time. “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.” § 2244(b)(3)(A).
Petitioner failed to obtain authorization before filing the instant petition.
Petitioner argues his claim is not successive because he did not know of this potential
claim at the time he filed previous petitions under § 2241 and § 2254, and he could not file this
petition until he exhausted his administrative options. However, these arguments miss the mark
of what is required in order to bring a challenge under § 2254. While it may be true that
Petitioner first had to exhaust his administrative options, Petitioner has provided no information
as to why he did not administratively challenge the computation of his sentence earlier.
Petitioner could have requested a sentence computation, as he did recently, earlier in his sentence
and thus would have discovered the facts that led to his current argument, which then could have
been included in his previous petitions. See Wright, 826 F.3d at 784 (“[N]ew claims raised in
subsequent habeas petitions” are barred if “those claims were available to petitioner at the time
of a prior petition’s filing.”).
Petitioner also argues that his petition is not successive because he has not filed a petition
regarding his good time credit previously, citing a case in which a petitioner raised the same
legal issue as in a prior petition. See Cook v. Pearce, No. A-14-CV-913 LY, 2015 U.S. Dist.
3

LEXIS 31822 (W.D. Tx. Mar. 13, 2015) (recommending dismissal based on abuse of the writ for
reasserting same arguments as a previous unsuccessful filing), aff’d 639 F. App’x 283 (5th Cir.
2016). Petitioner seeks to distinguish his case from the cited authority. However, this authority
is not on point. It is not only claims previously brought that are barred from a subsequent
petition, but also those that could have been brought but were not. See Wright, 826 F.3d at 784
(failing to raise a claim in a subsequent petition that could have been raised in the first leads to
dismissal even in “instances where litigants, through inexcusable neglect, fail to raise available
claims.”)
For the reasons stated in the Report and those above, this petition is dismissed without
prejudice.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
December 28, 2016

4