Bing v. South Carolina Department of Corrections

Filing 6

REPORT AND RECOMMENDATIONS recommending 1 Petition for Writ of Habeas Corpus filed by Antonio Bing, be Dismissed without prejudice as a successive 2254 petition under Rule 9(b) of the Section 2254 Rules, without requiring the respondents to file a return. Objections to R&R due by 1/29/2007. Signed by Judge Bruce Howe Hendricks on 1/9/07. (kmca)

Bing v. South Carolina Department of Corrections

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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

Antonio Bing, # 199832,

Petitioner, vs. South Carolina Department of Corrections; and Stan Burtt, Warden of Lieber Correctional Institution,

Respondents. _________________________________________

) C/A No. 8:07-0025-MBS-BHH ) ) ) ) ) Report and Recommendation ) ) ) ) ) )

Background of this Case
The petitioner is an inmate at the Lieber Correctional Institution of the South Carolina Department of Corrections. He has submitted a petitioner for writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 On August 11, 1999, in the Court of General Sessions for Barnwell County, the petitioner was convicted of armed robbery (Indictment No. 99-GS-06-006) a n d was sentenced to twenty-seven (27) years in prison. The petitioner
In the spring of 2005, the Office of the Clerk of Court implemented a new system for listing case numbers. Under this new system, the two alphabetical suffixes at the end of the civil action number reflect the United States District Judge assignment and United States Magistrate Judge assignment. 1
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indicates that the South Carolina Court of Appeals dismissed the direct appeal. The petitioner filed an application for post-conviction relief and appealed the denial of post-conviction relief. In the petition, the petitioner raises two grounds: (1) lack of subject matter jurisdiction by the trial court; and (2) the PCR court erred in dismissing "defective indictment claim, New Discovered Evidence[.]"

D is c u s s io n
Under established local procedure in this judicial district, a careful review2 has been made of the pro se petition and the Form AO 240 pursuant to the procedural provisions of 28 U.S.C. § 1915 and the AntiTerrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25, 118 L.Ed.2d 340, 112 S.Ct. 1728, 1992 U.S. LEXIS® 2689 (1992); Neitzke v. Williams, 490 U.S. 319, 324-325, 1989 U.S. LEXIS® 2231 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (DSC), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the District Court. 2
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House of Correction, 64 F.3d 951, 1995 U.S.App. LEXIS® 26108 (4th Cir. 1995)(en banc), cert. denied, 516 U.S. 1177, 134 L.Ed.2d 219, 116 S.Ct. 1273, 1996 U.S. LEXIS® 1844 (1996); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); and Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).3 Pro se complaints and petitions are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert. denied, Leeke v. Gordon, 439 U.S. 970 (1978), and a federal district court is charged with liberally construing a complaint or petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10 & n. 7 (1980)(per curiam); and Cruz v. Beto, 405 U.S. 319 (1972). When a federal court is evaluating a pro se complaint or petition, the plaintiff's or petitioner's allegations are assumed to be true. Fine v. City of New York, 529 F.2d 70, 74 (2nd Cir. 1975). Even under this less stringent standard, the petition is subject to summary dismissal. 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

Boyce has been held by some authorities to have been abrogated in part, on other grounds, by Neitzke v. Williams, 490 U.S. 319 (1989)(insofar as Neitzke establishes that a complaint that fails to state a claim, under Federal Rule of Civil Procedure 12(b)(6), does not by definition merit sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) [formerly 28 U.S.C. § 1915(d)], as "frivolous"). 3

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a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 1990 U.S.App. LEXIS® 6120 (4th Cir. 1 9 9 0 ). With respect to his conviction, the petitioner's sole federal remed y is a writ of habeas corpus under 28 U.S.C. § 2241 or 28 U.S.C. § 2254, which can be sought only after he has exhausted his state court remedies. See 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270 (1971); and Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-491 (1973)(exhaustion required under 28 U.S.C. § 2241). Although the

petitioner has exhausted his state remedies, he has, in the case at bar, submitted a successive petition. In Antonio Bing v. State of South Carolina; and SC Attorney General Charles M. Condon, Civil Action No. 8:02-3363-24BI,4 the petition on October 15, 2002, submitted a Section 2254 petition concerning his c on viction for armed robbery. In an order filed on October 17, 2002, the undersigned granted the petitioner's motion to proceed in forma pauperis and directed the respondents to file a return. After receiving an extension

Civil Action No. 8:02-3363-24BI was assigned when the Office of the Clerk of Court was using a different system of listing case numbers. See footnote 1, supra. 4

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of time, the respondents filed a motion for summary judgment, a return, and a memorandum. On February 6, 2003, the petitioner was apprised of dispositive motion procedure, as required by Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975). The petitioner responded to the Roseboro order and also filed his own motion for summary judgment. In a Report and Recommendation filed in Civil Action No. 8:02-3363-23BI on April 22, 2003, the undersigned recommended that the respondents' motion for summary judgment be granted. The parties were a pprised of their right to file timely written objections to the Report and R ecom m endation and of the serious consequences of a failure to do so. Th e petitioner on May 1, 2003, filed his objections to the Report and R e c o m m e n d a ti o n . On July 3, 2003, the Honorable Margaret B. Seymour, United States District Judge, granted summary judgment to the respondents in Civil Action No. 8:02-3363-24BI. 8 :0 2 -3 3 6 3 -2 4 B I. The standard for determining whether a petition is successive appears in Slack v. McDaniel, 529 U.S. 473, 485-489, 146 L.Ed.2d 542, 120 S.Ct. 1595, 2000 U.S. LEXIS® 3000 (2000)(to qualify as "successive"
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No appeal was filed in Civil Action No.

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petition, prior petition must have been adjudicated on the merits). See also Tyler v. Cain, 533 U.S. 656, 150 L.Ed.2d 632, 121 S.Ct. 2478, 2001 U.S. LEXIS® 4909 (2001)(Section 2244(b) applies when first habeas corpus petition adjudicated on the merits was filed prior to enactment of AEDPA and second petition was filed after enactment of AEDPA). Since Civil Action No. 8:02-3363-23BI was decided by summary judgment, the petition in the above-captioned case (Civil Action No. 8:07-0025-MBS-BHH) is successive. Th is court may take judicial notice of Civil Action No. 8:02-3363-24BI. Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970). See also Colonial Penn Ins. Co. v. Coil, 887 F.2 d 1236, 1239, 1989 U.S.App. LEXIS® 16328 (4th Cir. 1989)("We note that `the most frequent use of judicial notice is in noticing the content of court records.'"); and Mann v. Peoples First National Bank & Trust Co., 209 F.2d 570, 572 (4th Cir. 1954)(approving district court's taking judicial notice of prior suit with same parties: "We think that the judge below was correct in holding that he could take judicial notice of the proceedings had before him in the prior suit to which Mann and the Distilling Company as well as the bank were parties.").

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The § 2254 petition in the above-captioned case is subject to dismissal under Rule 9(b) of the Section 2254 Rules. Miller v.

Bordenkircher, 764 F.2d 245, 248-250 & nn. 3-5 (4th Cir. 1985). See also McClesky v. Zant, 499 U.S. 467, 113 L.Ed.2d 517, 111 S.Ct. 1454, 14671472, 1991 U.S. LEXIS® 2218 (1991); Section 106 of the Anti-Terrorism and Effective Death Penalty Act of 1996, Public Law 104-132, 110 U.S.Stat. 1214; Bennett v. Angelone, 92 F.3d 1336, 1996 U.S.App. LEXIS® 21003 (4th Cir. 1996), cert. denied, 519 U.S. 1002, 136 L.Ed.2d 395, 117 S.Ct. 503, 1996 U.S. LEXIS® 7152 (1996); and Armstead v. Parke, 930 F. Supp. 1285, 1996 U.S.App. LEXIS® 8317 (N.D.Ind. 1996), affirmed, 116 F.3d 1482, 1997 U.S.App. LEXIS® 14835, 1997 WESTLAW® 345896 (7th Cir., June 13, 1997). See also Rule 9(b) of the Section 2254 Rules; and Aloe Creme Laboratories, Inc. v. Francine Co., supra, where the United States Court of Appeals for the Fifth Circuit commented: The District Court clearly had the right to take notice of its own files and records and it had no duty to grind the same corn a second time. Once was sufficient. Aloe Creme Laboratories, Inc. v. Francine Co., supra, 425 F.2d at 1296. See also United States v. Parker, 956 F.2d 169, 171, 1992 U.S.App. LEXIS® 1319 (8th Cir. 1992).
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In any event, there is no indication in the present petition that the petitioner has sought leave from the United States Court of Appeals for the Fourth Circuit to file the petition in the above-captioned case. Leave from the United States Court of Appeals for the Fourth Circuit is now required under the Anti-Terrorism and Effective Death Penalty Act of 1996 for filers of successive § 2254 petitions. Before the petitioner attempts to file another petition in the United States District Court for the District of South Carolina, he must seek and obtain leave (i.e., written permission) from the United States Court of Appeals for the Fourth Circuit. The petitioner can obtain the necessary form for doing so from the Clerk's Office of the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia.5 The five5

See Section 106 of the Anti-Terrorism and Effective Death Penalty Act of 1996: (B) LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS. )Section 2244(b) of title 28, UNITED STATES CODE, is amended to read as follows: "(B)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. "(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless) "(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (continued...) 8

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page form is entitled "Motion for Authorization to File Successive Application under 28 U.S.C. § 2244." The mailing address of the Clerk's Office of the

(...continued) "(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and "(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. "(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. "(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals. "(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection. "(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion. "(E) The 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. "(4) A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.". 9

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United States Court of Appeals for the Fourth Circuit is 1100 East Main Street -- Suite 501, Richmond, Virginia 23219-3517.

R e c o m m e n d atio n
Accordingly, it is recommended that the § 2254 petition be dismissed without prejudice as a successive § 2254 petition under Rule 9(b) of the Section 2254 Rules, without requiring the respondents to file a return. See Allen v. Perini, 424 F.2d 134, 141 (6th Cir.)(federal district courts have duty to screen habeas corpus petitions and eliminate burden placed on respondents caused by ordering an unnecessary answer or return), cert. denied, 400 U.S. 906 (1970); Toney v. Gammon, 79 F.3d 693, 697, 1996 U.S.App. LEXIS® 5804 (8th Cir. 1996)("However, a petition may be summarily dismissed if the record clearly indicates that the petitioner's claims are either barred from review or without merit."); Baker v. Marshall, 1995 U.S.Dist. LEXIS® 4614, *2-*3, 1995 WESTLAW® 150451 (N.D.Cal., March 31, 1995)("The District Court may enter an order for the summary dismissal of a habeas petition if it plainly appears from the face of the
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petition and any exhibits annexed to it that the petitioner is not entitled to relief in this Court."); and the Anti-Terrorism and Effective Death Penalty Act of 1996. The petitioner's attention is directed to the important notice on the next page. Respectfully submitted,

January 9, 2007 Greenville, South Carolina

s/Bruce Howe Hendricks United States Magistrate Judge

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Notice of Right to File Objections to Report and Recommendation The petitioner is advised that he 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); F ed. 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 Post Office Box 10768 Greenville, South Carolina 29603 Failure to timely file specific written objections to this Report and R ecom m endation will result in a 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.), cert. denied, Schronce v. United States, 467 U.S. 1208 (1984); and Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).

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