Scruggs v. Bush

Filing 30

ORDER RULING ON REPORT AND RECOMMENDATION: The Court overrules Petitioner's objections and adopts and incorporates by reference the Magistrate Judge's R & R [ECF No. 25 ]. Accordingly, the Court DISMISSES Petitione r's § 2254 petition without prejudice and without requiring Respondent to file an answer or return. The Court DENIES a certificate of appealability because Petitioner has not made "a substantial showing of the denial of a constitutional right" under 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. Signed by Honorable R Bryan Harwell on 5/26/2017. (mcot, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Albert Scruggs,

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Petitioner,
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v.
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Warden Bush,
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Respondent.
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________________________)

Civil Action No.: 5:17-cv-00211-RBH

ORDER

Petitioner Albert Scruggs, a state prisoner proceeding pro se, initiated this action by filing a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See ECF No. 1. The matter is now
before the Court for review of the Report and Recommendation (R & R) of United States Magistrate
Judge Kaymani D. West.1 See R & R [ECF No. 25]. The Magistrate Judge recommends summarily
dismissing Petitioner’s § 2254 petition without prejudice. R & R at 5. Petitioner has filed objections
to the R & R. See Pet.’s Objs. [ECF No. 28].
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it may accept,
reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report

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This matter was automatically referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and
Local Rule 73.02(B)(2)(c) for the District of South Carolina.

to which objections have been filed. Id. However, the Court need not conduct a de novo review when
a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199-200 (4th Cir. 1983).
Discussion2
Petitioner previously filed a § 2254 petition, which this Court considered on the merits and
dismissed with prejudice.3 See Scruggs v. Stevenson, No. 5:12–CV–02940–RBH, 2014 WL 958280
(D.S.C. Mar. 11, 2014) (“Scruggs I”). Petitioner has now filed a second § 2254 petition challenging
the same convictions that were the subject of his first § 2254 petition. Compare ECF No. 1, with
Scruggs I at ECF No. 1. The Magistrate Judge recommends dismissing the instant petition as
successive, noting there is no indication that Petitioner obtained pre-filing authorization from the United
States Court of Appeals for the Fourth Circuit before filing it. R & R at 2, 4–5.
Although Petitioner filed objections, he does not dispute the Magistrate Judge’s findings that
his petition is successive and that he has not obtained pre-filing authorization. Instead, Petitioner
addresses the various claims he wishes to have the Court consider.4 See Pet.’s Objs. at 1–4. The Court

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The R & R thoroughly summarizes the background of this case, with applicable dates and citations to the
record. See R & R at 1–2, 4.

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Petitioner did not appeal the Court’s order.

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Petitioner indicates he wishes to bring these claims pursuant to Martinez v. Ryan, 566 U.S. 1 (2012) (holding
inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial). Pet.’s Objs. at 1. However, “federal courts have

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reiterates it may only consider objections pointing to a specific error in the R & R. See Camby, 718
F.2d at 199–200 (explaining that if a party’s objections lack the requisite specificity envisioned by 28
U.S.C. § 636(b)(1)(C), the district court need not conduct a de novo review of those portions of the R
& R to which no specific objections have been made); Fed. R. Civ. P. 72(b) (permitting a party to “serve
and file specific written objections to the proposed findings and recommendations” of the magistrate
judge (emphasis added)).
Regardless of Petitioner’s failure to challenge the Magistrate Judge’s proposed findings, the
Court agrees with those findings. This Court decided Petitioner’s first § 2254 petition on the merits.
See Scruggs I, 2014 WL 958280 (granting the respondent’s motion for summary judgment and
dismissing the petition with prejudice). Consequently, the petition currently before the Court is
successive. See Slack v. McDaniel, 529 U.S. 473, 485–89 (2000) (defining a successive petition as one
filed after an initial petition was decided on its merits). Moreover, there is no evidence showing
Petitioner obtained pre-filing authorization from the Fourth Circuit to file a successive petition. See 28
U.S.C. § 2244(b)(3)(A) (“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.”); Easter v. Johnson, 107 F. App’x 348, 349 (4th Cir.
2004) (“In the absence of pre-filing authorization, the district court is without jurisdiction to entertain

uniformly determined that Martinez did not establish a new rule of constitutional law.” McDowell v. McFadden, No.
CV 2:14–4650–TMC, 2015 W L 11109870, at *1 (D.S.C. June 2, 2015) (collecting cases), appeal dismissed, 622
F. App’x 278 (4th Cir. 2015). See, e.g., Akbar v. McCall, No. 0:13–CV–549–DCN, 2013 W L 3356213, at *3
(D.S.C. July 3, 2013) (“[B]ecause Martinez is an equitable ruling which did not establish a new rule of constitutional
law, the case does not provide authorization for Petitioner to proceed with a second or successive habeas corpus
petition under 28 U.S.C. § 2244(b)(2)(A).” (internal quotation marks omitted)), appeal dismissed, 543 F. App’x 340
(4th Cir. 2013). In any event, § 2244(b) still requires Petitioner to obtain pre-filing authorization from the Fourth
Circuit. See Gonzalez v. Crosby, 545 U.S. 524, 530 (2005) (“[B]efore the district court may accept a successive
petition for filing, the court of appeals must determine that it presents a claim not previously raised that is sufficient
to meet § 2244(b)(2)’s new-rule or actual-innocence provisions. § 2244(b)(3).”).

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the successive petition.”). Consequently, the Court lacks jurisdiction over Petitioner’s current § 2254
petition and must dismiss it.
Certificate of Appealability
A certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating reasonable jurists would find the court’s assessment
of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable and that
the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85.
In this case, the Court concludes Petitioner has not made the requisite showing of “the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
Conclusion
Based upon the foregoing, the Court overrules Petitioner’s objections and adopts and
incorporates by reference the Magistrate Judge’s R & R [ECF No. 25]. Accordingly, the Court
DISMISSES Petitioner’s § 2254 petition without prejudice and without requiring Respondent to file
an answer or return. The Court DENIES a certificate of appealability because Petitioner has not made
“a substantial showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
Florence, South Carolina
May 26, 2017

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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