Pitts v. South Carolina, State of

Filing 17

ORDER RULING ON REPORT AND RECOMMENDATION for 11 Report and Recommendation. The Court adopts the Report and Recommendation, and dismisses the petition without requiring the respondent to file a return. A certificate of appealability is denied. Signed by Honorable Joseph F Anderson, Jr on 4/28/2017. (kric, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Kevin Pitts,

C/A No. 6:17-697-JFA-KFM
Petitioner,

v.
ORDER
Warden of Lee Correctional Institution,

Respondent.

I.

Introduction

Kevin Pitts (“Petitioner” or “Pitts”) filed his second pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 while confined at Lee Correctional Institution of the South Carolina
Department of Corrections. Petitioner seeks to vacate his 2006 state convictions of murder and
possession of a weapon during the commission of a violent crime in the Anderson County Court
of General Sessions. (ECF No. 1). His alleged grounds for relief include ineffective assistance of
counsel, lack of probable cause for arrest, newly discovered evidence, and prosecutorial
misconduct. Id. Pursuant to 28 U.S.C. §636(b)(1)(B), and Local Rule 73.02(B)(2)(C) (D.S.C.), this
matter was referred to the Magistrate Judge.
According to the Rules Governing Section 2254 Cases in the United States District Courts,
the Magistrate Judge thoroughly examined Pitts’ petition to determine if, when liberally construed,
“it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to
relief in the district court.” SECT 2254 Rule 4.

The Magistrate Judge assigned to this action1 then prepared a thorough Report and
Recommendation (“Report”) and opines that this court should dismiss Pitts’ petition for failure to
obtain leave from the Fourth Circuit Court of Appeals to file a successive petition. The Report sets
forth in detail the relevant facts and standards of law on this matter, and this court incorporates
those facts and standards without a recitation. Pitts was advised of his right to object to the Report,
which was entered on the docket on April 13, 2017. (ECF No. 11). Wilson filed objections to the
Report on April 26, 2017. (ECF No. 14). Thus, this matter is ripe for review.
The court is charged with making a de novo determination of those portions of the Report
to which specific objections are made, and the court may accept, reject, or modify, in whole or in
part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge
with instructions. See 28 U.S.C. § 636(b)(1). However, a district court is only required to conduct
a de novo review of the specific portions of the Magistrate Judge’s Report to which an objection
is made. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); Carniewski v. W. Virginia Bd. of Prob. &
Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to portions of the
Report of the Magistrate, this Court is not required to give an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
II.

Discussion

Petitioner asserts a single objection to the Report in which he states that he has newly
discovered evidence. (ECF No. 14). However, Petitioner’s objection misses the mark.

1

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(g) (D.S.C.). 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. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of those portions of the Report and Recommendation to which specific objection is made,
and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate
Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).
2

As explained in the Report, Pitts’ current petition is successive and “even if the petitioner
has obtained newly discovered evidence, he still must move in a court of appeals for an order to
authorize the district court to consider a successive § 2254 petition.” (ECF No. 11 p. 4) (citing 28
U.S.C. § 2244(b); Kelly v. South Carolina Dep’t of Corr., 382 F. App’x 284 (4th Cir. June 9,
2010)). Therefore, Petitioner must seek authorization from the United States Court of Appeals for
the Fourth Circuit to file a successive petition for habeas corpus. Without authorization, this Court
is without jurisdiction to consider a successive petition. See United States v. Winestock, 340 F.3d
200, 205–06 (4th Cir. 2003).
III.

Conclusion

After carefully reviewing the applicable laws, the record in this case, as well as the Report,
this court finds the Magistrate Judge’s recommendation fairly and accurately summarizes the facts
and applies the correct principles of law. Accordingly, the Court adopts the Report and
Recommendation, and dismisses the petition without requiring the respondent to file a return.
Further, because Petitioner has failed to make “a substantial showing of the denial of a
constitutional right,” a certificate of appealability is DENIED. 28 U.S.C. § 2253(c)(2).2
IT IS SO ORDERED.

April 28, 2017
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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). A prisoner satisfies this standard by demonstrating that reasonable jurists
would find both that his constitutional claims are debatable and that any dispositive procedural rulings by
the district court are also debatable or wrong. 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 the instant matter,
the court finds that the defendant has failed to make “a substantial showing of the denial of a constitutional
right.”
2

3