Taylor v. Dunlap

Filing 19

ORDER accepting 10 Report and Recommendation. The petition is DISMISSED. The Court concludes that it is not appropriate to issue a certificate of appealability as to the issues raised herein. Petitioner is advised that he may seek a certificate from the Fourth Circuit Court of Appeals under Rule 22 of the Federal Rules of Appellate Procedure. Signed by Chief Judge Terry L Wooten on 6/8/17. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Anthony R. Taylor
a.k.a. Anthony Robert Taylor,

Case No. 6:15-cv-04363-TLW

PLAINTIFF,
v.

Order

Warden Dunlap,
DEFENDANT.
Petitioner Anthony R. Taylor, proceeding pro se and in forma pauperis, filed this petition
seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. ECF No. 1. The matter now comes
before the Court for review of the Report and Recommendation (R&R) filed on November 3, 2015,
by United States Magistrate Judge Kevin F. McDonald, to whom this case was assigned pursuant
to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), DSC. ECF No.
10. In the R&R, the magistrate judge recommended summarily dismissing the petition. Id.
Petitioner filed objections to the R&R on November 20, 2015. ECF No. 13. This matter is now
ripe for decision.
In reviewing the R&R, the Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections . . . . The Court is not bound by the
recommendation of the magistrate judge but, instead, retains responsibility for the
final determination. The Court is required to make a de novo determination of those
portions of the report or specified findings or recommendation as to which an
objection is made. However, the Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of the magistrate judge as to
those portions of the report and recommendation to which no objections are
addressed. While the level of scrutiny entailed by the Court’s review of the Report
thus depends on whether or not objections have been filed, in either case the Court
is free, after review, to accept, reject, or modify any of the magistrate judge’s
findings or recommendations.
Wallace v. Hous. Auth. of City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citations
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omitted). In light of the standard set forth in Wallace, the Court has reviewed, de novo, the R&R
and the objections.
Petitioner objects to the R&R and asserts that his current § 2254 petition is not governed
by 28 U.S.C. § 2244 because it raises a new claim that could not have been raised in his first § 2254
petition, does not challenge the validity of his conviction or sentence, and challenges a new
judgment from the South Carolina Supreme Court. ECF No. 13 at 2. He asserts that the South
Carolina Supreme Court’s denial of his motion for an out-of-time appeal or authorization to file a
successive post-conviction relief (“PCR”) application pursuant to Austin v. State, 409 S.E.2d 395
(S.C. 1991), is a new judgment. Id.; ECF No. 1 at 5. Petitioner asserts that the South Carolina
Supreme Court denied his rights to due process and equal protection under the Fourteenth
Amendment when it denied his motion. ECF No. 13 at 2.
A § 2254 petition “seeks invalidation . . . of the [state] judgment authorizing the prisoner’s
confinement.” Magwood v. Patterson, 561 U.S. 320, 332 (2010). In analyzing a second-in-time
habeas application, “a court must first determine whether a petition is second or successive, and
only if it is should the court review the petition’s individual claims to see if they meet § 2244(b)’s
requirements.” In re Gray, 850 F.3d 139, 141 (4th Cir. 2017). “[T]he phrase ‘second or successive’
must be interpreted with respect to the judgment challenged.” Magwood, 561 U.S. at 333.
“[W]here . . . there is a ‘new judgment intervening between the two habeas petitions,’ . . . an
application challenging the resulting new judgment is not ‘second or successive’ at all.” Magwood,
561 U.S. at 341–42 (quoting Burton v. Stewart, 549 U.S. 147, 156 (2007)). “[A] final judgment of
conviction includes both the adjudication of guilt (or ‘conviction’) and the sentence.” Gray, 850
F.3d at 141.
The South Carolina Supreme Court’s denial of Petitioner’s motion for an out-of-time

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appeal or successive PCR is not a new judgment and thus his petition is second or successive under
§ 2244. A “judgment” is the conviction and sentence under which the prisoner is confined;
however, Petitioner is not in custody pursuant to the South Carolina Supreme Court’s order
denying his motion. The only judgment Petitioner could challenge in this § 2254 habeas petition
is the judgment confining him, which is the same judgment that Petitioner challenged in his § 2254
petition from 2003. See ECF No. 10 at 3. As explained in Magwood and Burton, where there is no
intervening judgment between habeas petitions, the second-in-time petition challenges the same
judgment and is “second or successive” under § 2244(b). See Magwood, 561 U.S. at 333 (petition
was not successive where there was an intervening judgment); Burton, 549 U.S. at 156 (petition
was successive where there was not an intervening judgment). Therefore, the petition here is
second or successive under § 2244.
Petitioner attempts to support his position that his petition is not successive with a case
from the Western District of Louisiana. See Gaston v. Goodwin, No. CIV.A. 13-2952, 2014 WL
508515, at *2 (W.D. La. Feb. 6, 2014). Noting that the Gaston petitioner ultimately did not obtain
relief, the Court is not persuaded in light of binding Supreme Court and Fourth Circuit precedent.
Magwood, Burton, and Gray establish a judgment-based approach to whether a habeas petition is
second or successive. Accordingly, the Court OVERRULES Petitioner’s objections.
The Court notes that even if the petition were not successive, summary dismissal would be
appropriate because the petition challenges a collateral decision rather than the judgment
authorizing Petitioner’s confinement and therefore is not cognizable under § 2254. See 28 U.S.C.
§ 2243 (court shall issue writ unless it appears from the application that petitioner is not entitled
to relief); see also Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts.

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As noted above, a § 2254 petition challenges the state judgment confining the petitioner.
See Magwood, 561 U.S. at 332. Accordingly, “claims of error occurring in a state post-conviction
proceeding cannot serve as a basis for federal habeas corpus relief.” Bryant v. State of Md., 848
F.2d 492, 493 (4th Cir. 1988). This is so “because the assignment of error relating to those postconviction proceedings represents an attack on a proceeding collateral to detention and not to the
detention itself.” Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008). Where a prisoner is not
detained based on a decision in a state habeas action, challenging the state habeas decision does
not establish the basis for federal habeas relief. Wright v. Angelone, 151 F.3d 151, 159 (4th Cir.
1998).
Petitioner challenges a collateral decision regarding state court post-conviction relief
proceedings rather than the judgment authorizing his confinement. Because Petitioner does not
challenge the judgment authorizing his confinement, habeas relief under § 2254 is not available.
See Bryant, 848 F.2d at 493; Lawrence, 517 F.3d at 717; Wright, 151 F.3d at 159.
After careful review of the R&R and the objections, for the reasons stated by the magistrate
judge and the reasons set forth in this opinion, the R&R is ACCEPTED. The petition is hereby
DISMISSED.
The Court has reviewed this petition in accordance with Rule 11 of the Rules Governing
Section 2254 Proceedings. The Court concludes that it is not appropriate to issue a certificate of
appealability as to the issues raised herein. Petitioner is advised that he may seek a certificate from
the Fourth Circuit Court of Appeals under Rule 22 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.
___________________________
s/Terry L. Wooten
Terry L. Wooten
Chief United States District Judge

June 8, 2017
Columbia, South Carolina
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