Harvin v. Cartledge

Filing 13

ORDER adopting 9 Report and Recommendation. IT IS THEREFORE ORDERED that the § 2254 petition is DISMISSED without prejudice. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Honorable R Bryan Harwell on 4/21/14. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Larry G. Harvin, #253468
Petitioner,
v.
Warden Leroy Cartledge,
Respondent.

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Civil Action No.: 8:13-cv-3515-RBH

ORDER

Petitioner Larry G. Harvin, #253468 (“Petitioner”), a state prisoner proceeding pro se,
initiated this action by filing a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. This
matter is before the Court after the issuance of the Report and Recommendation (“R & R”) of
United States Magistrate Judge Jacquelyn D. Austin.1

In the R & R, the Magistrate Judge

recommends that the Court find the Petition successive and dismiss it without prejudice. See R &
R, ECF No. 9 at 7.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner is serving a life sentence for murder and a thirty year conviction for armed
robbery. He was convicted in the Charleston County Court of General Sessions in October 1998.
This is the third § 2254 petition that Petitioner has submitted to this Court in his efforts to challenge
the constitutionality of his convictions. Petitioner’s initial § 2254 petition was considered on the
merits, resulting in an Order granting summary judgment against Petitioner and the dismissal of the
petition. See Order, Harvin v. Rushton, et al., No. 3:03-cv-0688-GRA (D.S.C. Jan. 16, 2004).
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In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this matter was
referred to the Magistrate Judge for pretrial handling. “If it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the petitioner.” Rs. Governing § 2254 Cases in the
U.S. Dist. Cts. 4.

Petitioner appealed both on the merits and on the Court’s denial of a certificate of appealability.
The Fourth Circuit dismissed both of these appeals. See Harvin v. Rushton, 98 Fed. App’x 946 (4th
Cir. 2004); Harvin v. Rushton, 104 Fed. App’x 315 (4th Cir. 2004). Petitioner filed various postjudgment motions in this matter, which were denied by Judge Anderson. See, e.g., Order, Harvin v.
Rushton, et al., No. 3:03-0688-GRA (D.S.C. Jan. 11, 2007) (denying motion to vacate); Order,
Harvin v. Rushton, et al., No. 3:03-0688-GRA (D.S.C. Sept. 13, 2011) (denying motion for relief
from judgment). Plaintiff appealed Judge Anderson’s denial of his motion for relief from judgment,
which the Fourth Circuit dismissed. See Harvin v. Rushton, 467 Fed. App’x 214 (4th Cir. 2012).
Petitioner’s second § 2254 petition was summarily dismissed as successive and
unauthorized. See Order, Harvin v. Rushton, et al., No. 3:05-cv-02596-RBH (D.S.C. Oct. 5, 2005).
Plaintiff appealed the dismissal, but the Fourth Circuit also dismissed this appeal. See Harvin v.
Rushton, 164 Fed. App’x 443 (4th Cir. 2006).
The petition presently before the Court was filed on December 19, 2013. Petitioner alleges
two grounds in the petition: (1) ineffective assistance of trial counsel and (2) due process violation
based upon excessive delay in state-corrective process. See Petition, ECF No. 1, at 5–6. Petitioner
does not indicate anywhere in the petition that he sought and obtained permission from the United
States Court of Appeals for the Fourth Circuit before filing this third § 2254 petition. See generally
ECF No. 1. After an examination of the petition, the Magistrate Judge issued her R & R on
December 23, 2013, recommending that the Court dismiss the petition as successive. See ECF No.
9 at 7. Petitioner timely filed objections to the R & R on January 8, 2014. See Pet’r’s Objections,
ECF No. 11.

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STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with this
Court. See Mathews v. Weber, 423 U.S. 261, 270–71 (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 with instructions. See 28 U.S.C.
§ 636(b)(1).
In the absence of objections to the Report and Recommendation of the Magistrate Judge,
this Court is not required to give any explanation for adopting the recommendations. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). The Court reviews only for clear error in the absence of
an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005)
(stating that “in the absence of a timely filed objection, a district court need not conduct 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’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
DISCUSSION
The Magistrate Judge recommends dismissing the petition without requiring Respondent to
file a return, concluding that the petition was successive and that Petitioner failed to obtain
authorization from the Fourth Circuit. In his objections, Petitioner argues that the Magistrate Judge
erred in finding that his initial habeas petition was adjudicated on the merits. See ECF No. 11 at 1.
In particular, he argues that Judge Anderson made a “procedural” ruling in denying his first petition,
and thus this petition is not successive because his prior petition was not adjudicated on the merits.
See id. at 2.

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The Court finds that Plaintiff’s objections are without merit. The Magistrate Judge correctly
concluded that this petition is successive. Petitioner correctly notes that, in addressing his original
section 2254 petition, the Court rejected three of his four claims as “procedurally-barred.” See
Order, Harvin v. Rushton, et al., No. 3:03-cv-0688-GRA (D.S.C. Jan. 16, 2004). To be considered
“successive,” the second or subsequent petition must be an attack on the same conviction attacked
in the first petition, and the first petition must have been adjudicated on the merits. See In re
Williams, 444 F.3d 233, 236 (4th Cir. 2006). Where an initial petition is dismissed on techinical
grounds, such as failure to exhaust state remedies, it is not counted in determining whether a
petition is successive. See id. at 235. However, “[d]ismissal of a habeas petition for procedural
default is a dismissal on the merits for purposes of determining whether a habeas petition is
successive.” Harvey v. Koran, 278 F.3d 370, 379 (4th Cir. 2002), abrogated on other grounds by
Skinner v. Switzer, __ U.S. __, 131 S. Ct. 1289 (2011); see also McNabb v. Yates, 576 F.3d 1028,
1029 (9th Cir. 2009) (“In contrast, the dismissal of a first petition with prejudice because of a
procedural default . . . forecloses the possibility that the underlying claims will be addressed by a
federal court. Such a dismissal therefore constitutes a disposition on the merits and renders a
subsequent petition second or successive.” (citations omitted)).
The Court takes judicial notice of Petitioner’s initial section 2254 petition filed in Harvin v.
Rushton, et al., No. 3:03-0688-GRA-JRM, as well as the previous Order granting summary
judgment in that matter.2 See 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.’”

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In her Order, the Magistrate Judge mistakenly indicated that she was taking judicial notice of civil
action number “3:05-688-GRA-JRM”; however, based on the discussion in the R & R, she clearly
intended to refer to “3:03-0688-GRA-JRM.” See ECF No. 9 at 5–6. Petitioner himself notes that
this was simply an “innocent Scrivener’s error” by the Magistrate Judge, and he recognized the
matter to which she was referring. See ECF No. 11 at 2–3.
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(citation omitted)). The initial petition was adjudicated on the merits, making the present petition,
which attacks the same conviction, successive for purposes of 28 U.S.C. § 2244(b).3
Petitioner’s reliance on the Supreme Court’s decision in Slack v. McDaniel is improper. In
Slack, the Supreme Court found that the petitioner’s second § 2254 petition was not successive. See
529 U.S. 473, 485–86 (2000). Slack, however, concerned a situation where the second habeas
petition was “unadjudicated on its merits and dismissed for failure to exhaust state remedies.” See
id. As the Fourth Circuit has explained, however, “dismissal for procedural default is a dismissal
on the merits,” and “[i]t is critically different from a dismissal for failure to exhaust, which does not
prevent federal habeas review at a later date.” See Harvey, 278 F.3d at 380. Here, Judge Anderson
granted summary judgment in favor of respondent on the initial petition based on procedural
default, not failure to exhaust. See Order, Harvin v. Rushton, et al., No. 3:03–cv–0688–GRA, at *3
(D.S.C. Jan. 16, 2004).
Therefore, the Court finds the Magistrate Judge’s recommendation is proper. The petition
currently before this Court is successive, and there is no evidence showing that Petitioner obtained
leave from the Fourth Circuit for this Court to consider 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.”).

Without authorization to hear Petitioner’s

successive petition, the Court finds no error in the Magistrate Judge’s recommendation.

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The Court also takes judicial notice of Judge Anderson’s Order dismissing Petitioners second §
2254 petition as successive, where Petitioner raised a similar argument based on Slack. See Order,
Harvin v. Rushton, et al., No. 3:05-cv-02596-RBH (D.S.C. Oct. 5, 2005).
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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 that reasonable jurists would find that 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 the instant matter, the Court concludes that Petitioner has
failed to make the requisite showing of “the denial of a constitutional right.”
CONCLUSION
The Court has thoroughly analyzed the entire record, including the § 2254 petition, the
Magistrate Judge’s R & R, Petitioner’s objections, and the applicable law. For the reasons stated
above and by the Magistrate Judge, the Court hereby adopts the Magistrate Judge’s R & R. IT IS
THEREFORE ORDERED that the § 2254 petition is DISMISSED without prejudice.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED because the
Petitioner has failed to make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
April 21, 2014

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