Moore v. Cartledge

Filing 8

REPORT AND RECOMMENDATIONS that 1 § 2254 petition be dismissed without prejudiceand without requiring the respondent to file an answer or return. Objections to R&R due by 1/4/2010. Signed by Magistrate Judge Bruce Howe Hendricks on 12/16/09. (jtho, )

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

Tony L. Moore, # 275740,

Petitioner, vs. Leroy Cartledge, Warden of McCormick Correctional Institution,

Respondent. _________________________________________

) C/A No. 8:09-3161-HMH-BHH ) ) ) ) ) Report and Recommendation ) ) ) ) ) )

Background of this Case
This is a habeas corpus action filed by a state prisoner pursuant to 28 U.S.C. § 2254. The petitioner is an inmate at the McCormick Correctional Institution of the South Carolina Department of Corrections (SCDC). He has submitted a handwritten Section 2254 petition concerning his conviction and twenty-nine year sentence for armed robbery entered in the Court of General Sessions for Orangeburg County on June 6, 2001. In his petition, the petitioner indicates that he was misinformed by his appellate post-conviction (PCR) counsel that he had one year from the date of the end of his PCR case to file a timely Section 2254 petition. The petitioner also contends that the alleged eyewitness identification should have been suppressed and that the trial court lacked subject-matter jurisdiction to try, convict,

1

and sentence him. The petitioner seeks reversal of his conviction and a "Remand" for a new trial. Since the petition in the above-captioned case is clearly successive, no useful purpose would be served by having the petitioner submit an amended petition on the Form AO 241.

D is c u s s i o n
Under established local procedure in this judicial district, a careful review has been made of the pro se petition and the Form AO 240 (motion to proceed in forma pauperis) pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review1 has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979) (recognizing the district court's authority to conduct an initial screening of any pro se filing);2 Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. See

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. 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"). 2
2

1

Erickson v. Pardus, 551 U.S. 89 (2007)(per curiam); 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 a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387 (4th Cir. 1990). W ith respect to his conviction for armed robbery, the petitioner's sole federal remedy 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 Tony L. Moore v. State of South Carolina; and Anthony Padula, Warden Lee Correctional Institution, the petitioner on May 25, 2007, brought an action for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his conviction and twenty-nine year sentence for armed robbery entered in the Court of General Sessions for Orangeburg County on June 6, 2001. On May 31, 2007, the undersigned terminated the State of South Carolina as a respondent, granted the petitioner's motion to proceed in forma pauperis, and directing the respondent to file an answer or return.

3

After receiving two extensions of time, the respondent on September 21, 2007, filed an answer and motion for summary judgment. The undersigned on September 24, 2007, issued a Roseboro order to apprise the petitioner of dispositive motion procedure. Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975). After receiving two extensions of time, the petitioner responded to the Roseboro order on January 28, 2008. In a Report and Recommendation filed in Civil Action 8:07-1471-HMH-BHH on April 14, 2008, the undersigned recommended that the respondent's motion for summary judgment be granted because the petition was untimely by one hundred forty-one (141) days. The parties in Civil Action No. 8:07-1471-HMH-BHH were apprised of their right to file timely written objections to the Report and Recommendation and of the serious consequences of a failure to do so. On May 2, 2008, the petitioner filed timely written objections to the Report and Recommendation. In an Order filed in Civil Action No. 8:07-1471-HMH-BHH on May 5, 2008, the Honorable Henry M. Herlong, Jr., United States District Judge, adopted the Report and Recommendation and granted summary judgment to the respondent. Judge Herlong's Order is reported at Moore v. Padula, Civil Action No. 8:07-1471-HMH-BHH, 2008 U.S. Dist. LEXIS 36722, 2008 WL 1994842 (D.S.C., May 5, 2008). The petitioner's appeal (Fourth Circuit Docket No. 08-6923) in Civil Action No. 8:07-1471-HMH-BHH was not successful. On October 17, 2008, the United States Court of Appeals for the Fourth Circuit denied a certificate of appealability and dismissed the appeal. Tony L. Moore v. Padula, No. 08-6923, 297 Fed.Appx. 272, 2008 U.S.App. LEXIS 21852, 2008 WL 4613870 (4th Cir., Oct. 17, 2008).

4

The standard for determining whether a petition is successive appears in Slack v. McDaniel, 529 U.S. 473, 485-89 (2000) (to qualify as "successive" petition, prior petition must have been adjudicated on the merits). See also Tyler v. Cain, 533 U.S. 656 (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. 8:07-1471-HMH-BHH was decided by summary judgment, the petition in the above-captioned case (Civil Action No. 8:09-3161-HMH-BHH) is successive. This court may take judicial notice of Civil Action No. 8:07-1471-HMH-BHH and its disposition on appeal. See 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.2d 1236, 1239 (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."). The § 2254 petition in the above-captioned case is subject to dismissal because it is a successive petition. Miller v. Bordenkircher, 764 F.2d 245, 248-50 & nn. 3-5 (4th Cir. 1985). See also McClesky v. Zant, 499 U.S. 467 (1991); Bennett v. Angelone,

92 F.3d 1336 (4th Cir. 1996); and Armstead v. Parke, 930 F. Supp. 1285 (N.D. Ind. 1996), affirmed, No. 96-2964, 116 F.3d 1482 [Table], 1997 U.S.App. LEXIS 14835, 1997 WL

5

345896 (7th Cir., June 13, 1997); and 28 U.S.C. § 2244(b). See also Aloe Creme Laboratories, Inc. v. Francine Co., 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., 425 F.2d at 1296. See also United States v. Parker, 956 F.2d 169, 171 (8th Cir. 1992). 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. See Rule 9 of the Section 2254 Rules. 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.3 See Section 106 of the Anti-Terrorism and Effective Death Penalty Act of 1996, Public Law 104-132, 110 U.S.Stat. 1214 (1996), which is codified at 28 U.S.C. § 2244: (a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as (continued...) 6
3

(...continued) provided in section 2255. (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 (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 (continued...) 7

The five-page form for prisoners in the Fourth Circuit seeking leave to file a successive petition is entitled a "Motion for Authorization to File Successive Application under 28 U.S.C. § 2244." The mailing address of the Clerk's Office of the United States Court of Appeals for the Fourth Circuit is 1100 East Main Street -- Suite 501, Richmond, Virginia 23219-3517.

Recom mendation
Accordingly, it is recommended that the § 2254 petition be dismissed without prejudice and without requiring the respondent to file an answer or return. See Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (federal district courts have duty to screen habeas corpus petitions and eliminate burden placed on respondents caused by ordering an unnecessary answer or return); Toney v. Gammon, 79 F.3d 693, 697 (8th Cir. 1996) ("However, a petition may be summarily

(...continued) 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. 8

dismissed if the record clearly indicates that the petitioner's claims are either barred from review or without merit."); Baker v. Marshall, No. C 94-3649 VRW, 1995 U.S.Dist. LEXIS 4614, *2-*3, 1995 WL 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 petition and any exhibits annexed to it that the petitioner is not entitled to relief in this Court."); and the AntiTerrorism and Effective Death Penalty Act of 1996. The petitioner's attention is directed to the important notice on the next page.

s/Bruce Howe Hendricks United States Magistrate Judge December 16, 2009 Greenville, South Carolina

9

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 Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n 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.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note). Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 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 Recommendation will result in 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); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

10