Washington v. Cartledge et al
ORDER adopting 9 Report and Recommendation of Magistrate Judge Bristow Marchant. It is the judgment of the Court the petition is DISMISSED WITHOUT PREJUDICE and without requiring Respondent to file a return. To the extent Petitioner requests a certificate of appealability from this Court, that Certificate is DENIED. Signed by Honorable Mary Geiger Lewis on 7/10/2017.(ssam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Civil Action No. 9:14-2244-MGL-BM
ORDER ADOPTING THE REPORT AND RECOMMENDATION
AND SUMMARILY DISMISSING THE PETITION WITHOUT PREJUDICE
AND WITHOUT REQUIRING RESPONDENT TO FILE A RETURN
This case was filed as a 28 U.S.C. § 2241 action. Petitioner is proceeding pro se. The
matter is before the Court for review of the Report and Recommendation (Report) of the United
States Magistrate Judge suggesting the petition be summarily dismissed without prejudice and
without requiring Respondent to file a return. The Report was made in accordance with 28 U.S.C.
§ 636 and Local Civil Rule 73.02 for the District of South Carolina.
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 the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo
determination of those portions of the Report to which specific objection is made, and the Court
may accept, reject, or modify, in whole or in part, the recommendations of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Magistrate Judge filed the Report on June 24, 2014. ECF No. 9. Here is a summary
of Petitioner’s submissions to the Court after the Report was filed:
July 7, 2014
The Clerk of Court filed Petitioner’s first set of objections to the Report.
ECF No. 11.
July 9, 2014
The Clerk of Court filed Petitioner’s second set of objections to the Report.
ECF No. 13.
July 10, 2014
The Clerk of Court field Petitioner’s third set of objections to the Report.
ECF No. 14.
July 14, 2014
The Clerk of Court filed Petitioner’s final set of objections to the Report.
ECF. No. 15.
October 20, 2014
The Clerk of Court for the Fourth Circuit entered Petitioner’s 28 U.S.C.
§ 2244 for an order authorizing this Court to consider a successive motion
for relief under 28 U.S.C. § 2254. The Fourth Circuit denied the motion.
November 12, 2014
The Clerk of Court filed Petitioner’s declaration reminding the Court of its
responsibility to address miscarriages of justice under 28 U.S.C. § 2243.
ECF No. 17.
November 23, 2015
The Clerk of Court filed Petitioner’s reply to the Court’s order to brief it on
the applicability of United States v. Surratt, 797 F.3d 240 (4th Cir. 2015) to
his § 2241 petition. ECF No. 33.
Petitioner sent an additional fourteen letters to the Court requesting docket sheets and status
The Court has carefully considered Petitioner’s objections and correspondence but holds
them to be without merit. Therefore, it will enter judgment accordingly.
“A document filed pro se is ‘to be liberally construed.’” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Courts are not, however, required
to “conjure up questions never squarely presented to them” or seek out arguments for a party.
Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Here, Petitioner presents
nothing in his many submissions that convince the Court the Magistrate Judge erred in
recommending the Petition be dismissed.
Petitioner is unable to successfully contradict the Magistrate Judge’s core suggestion the
Court lacks jurisdiction over this case due to Petitioner’s failure to adhere to the procedural rules
set forth for filing successive claims under 28 U.S.C. § 2254. Petitioner’s claims, while filed under
§ 2241, are more properly addressed under § 2254, as § 2254 specifically provides for prisoners
charged under state criminal codes to file a writ of habeas corpus in a federal court. See 28 U.S.C.
§ 2254(a) (“The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain
an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment
of a State court only on the ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.”). As the Magistrate Judge explains, Petitioner cannot escape the
procedural requirements of a § 2254 claim by praying for relief under § 2241. See ECF No. 9 at
4 (“Petitioner cannot evade the procedural requirements of 28 U.S.C. § 2254 by filing an action
purporting to be a § 2241 petition . . . If this were not the case, then ‘a state prisoner could simply
opt out of its  operation by choosing a different label for his petition.’”) (citation omitted).
Petitioner, who has previously filed two § 2254 claims in this Court, is required to seek
authorization for his claim from the appropriate federal appellate court before he may file a
successive writ of habeas corpus in federal district court. Barring such permission from the Fourth
Circuit, this Court lacks jurisdiction over the successive § 2254 claim. See United States v.
Winestock, 240 F.3d 200, 205 (4th Cir. 2003) (“In the absence of pre-filing authorization [from
the court of appeals], the district court lacks jurisdiction to consider an application containing
abusive or repetitive claims.”).
At the time of the Report, Petitioner had sought no such
authorization from the Fourth Circuit Court of Appeals. As noted above, after the Magistrate
Judge filed the Report, Petitioner filed a motion with the Fourth Circuit under 28 U.S.C. § 2244
for an order authorizing this Court to consider a successive application for relief under § 2254.
That motion was denied, which has the effect of denying this Court’s jurisdiction and curbing any
chance Petitioner might have to seek relief under § 2254.
Even if a § 2241 claim had been appropriate, however, Petitioner’s action would be barred
because he failed to satisfy the exhaustion requirements before filling his § 2241 petition. See
Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-491 (1993) (explaining exhaustion of
state remedies is required before filing a § 2241 petition).
At the time of the Report, Petitioner had a pending state court application for postconviction relief (PCR). See ECF No. 9 at 6 (“Petitioner acknowledges that he has a pending state
court application for post-conviction relief”). The state court dismissed the action on February 16,
1187789989085 (last visited on June 29, 2017).
Although the state court dismissed Petitioner’s state petition after Petitioner filed this
action, his failure to adhere to the exhaustion requirements before he filed his § 2441 petition
would keep this Court from entertaining his claim if it were properly before it.
In an abundance of caution, the Court has made a de novo review of the entire record. After
having done so, the Court remains convinced dismissing the petition without prejudice and without
requiring Respondent to file a return is proper. Therefore, the Court will overrule Petitioner’s
The Court notes its delay in deciding this case was based upon its waiting for the Fourth
Circuit to issue a decision from its March 23, 2016, en banc argument of United States v. Surratt,
No. 14-6851. A decision on the merits of Surratt had the potential of modifying the § 2241
jurisprudence in this circuit. In lieu of issuing a merits based decision, however, the court held the
issues presented in the case were moot because of President Obama’s commutation of Surratt’s
sentence. The Fourth Circuit issued its mandate in Surratt on June 13, 2017.
After a thorough review of the Report and the record in this case pursuant to the standard
set forth above, the Court overrules Petitioner’s objections, adopts the Report, and incorporates it
herein. Therefore, it is the judgment of the Court the petition is DISMISSED WITHOUT
PREJUDICE and without requiring Respondent to file a return.
To the extent Petitioner requests a certificate of appealability from this Court, that
Certificate is DENIED.
IT IS SO ORDERED.
Signed this 10th day of July, 2017, in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this Order within thirty days from the
date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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