Woods v. Cohen

Filing 14

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. The court DENIES Petitioners Petition for Writ of Habeas Corpus (ECF No. 1). It is therefore ORDERED that Petitioners Petition (ECF No. 1) in the above-captioned case is summarily DISMISSED without prejudice and without requiring Respondent to file a return. Certificate of appealability is denied. Signed by Honorable J Michelle Childs on 4/11/2017.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Cedric L. Woods,
(#00265789)

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Petitioner,
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v.
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Levern Cohen,
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Respondent.
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____________________________________)

Civil Action No. 9:16-cv-03890-JMC

ORDER AND OPINION

This matter is before the court on Pro se Petitioner Cedric L. Woods’ (“Petitioner”) third
Petition for Writ of Habeas Corpus (“Petition”), filed on December 12, 2016, pursuant to 28 U.S.C.
§ 2254 based on ineffective assistance of counsel, improper jury instruction, and “constructive
amendments.” (See ECF No. 1 at 5, 8, 9, 10, 11, 12, and 13.) This review considers Petitioner’s
Objections (“Objections”) to the Magistrate Judge’s Report and Recommendation (“Report”),
filed on March 31, 2017. (ECF No. 12.)
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02, the matter was referred
to United States Magistrate Judge Bristow Marchant for pre-trial handling. On March 17, 2017,
the Magistrate Judge issued a Report recommending the court to summarily dismiss Petitioner’s
Petition for Writ of Habeas Corpus without prejudice and without requiring Respondent to file a
return. (ECF No. 10.) The Magistrate Judge determined that Petitioner’s previous § 2254 petitions
were adjudicated on the merits and the Petition is successive. Furthermore, the Magistrate Judge
ruled that there is no indication that the United States Court of Appeals for the Fourth Circuit
authorized Petitioner to file a successive petition. For the reasons set forth herein, the court
ACCEPTS the Magistrate Judge’s Report.

The court thereby summarily DISMISSES

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Petitioner’s Petition for Writ of Habeas Corpus without prejudice and without requiring
Respondent to file a return.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The court concludes upon its own careful review of the record that the factual and
procedural summation in the Magistrate Judge’s Report is accurate, and the court adopts this
summary as its own. (See ECF No. 10.) The court will only recite herein facts pertinent to the
analysis of Petitioner’s Objections.
Petitioner is currently incarcerated in Allendale Correctional Institution, but was
transferred from Ridgeland Correctional Institution, where he was incarcerated at the time he filed
the Petition; both institutions are within the South Carolina Department of Corrections. (ECF Nos.
1 and 12.) On April 19, 2000, Petitioner was sentenced to thirty (30) years imprisonment for first
degree burglary and ten (10) years imprisonment for assault and battery of a high and aggravated
nature, to be served consecutively. (See ECF Nos. 1 at 1 and 10 at 2.) Petitioner was also sentenced
to twenty (20) years imprisonment for attempted armed robbery and thirty (30) years imprisonment
for kidnapping, to be served concurrently. Id. On December 12, 2016, Petitioner filed his third
Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, on the grounds of ineffective
assistance of counsel, improper jury instruction, and “constructive amendments.” (See ECF No. 1
at 5, 8, 9, 10, 11, 12, and 13.)
On June 9, 2011, Petitioner first filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 challenging his criminal convictions and sentences including first degree burglary,
assault and battery of a high and aggravated nature, attempted armed robbery, and kidnapping. See
Woods v. Pate, No. 3:11-1353-JMC, 2012 WL 3775966 (D.S.C. Aug. 29, 2012) at ECF No. 1. A
Magistrate Judge issued a Report and Recommendation to grant Respondent’s Motion for

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Summary Judgment. Id. at ECF No. 27. On August 29, 2012, the court granted Respondent's
Motion for Summary Judgment and dismissed Petitioner’s petition. Id. at ECF No. 33.
On February 7, 2014, Petitioner filed a second Petition for Writ of Habeas Corpus pursuant
to § 2254 in this court as a result of his criminal convictions and sentences and a Magistrate Judge
recommended dismissing the petition without prejudice as a successive petition. See Woods v.
Pate, No. 9:14-cv-00345-JMC (D.S.C. Mar. 11, 2014) at ECF Nos. 1 and 8. Petitioner filed a
motion to dismiss, and the court dismissed the petition without prejudice on the basis that
Petitioner had not filed any objections to the Magistrate Judge’s Report and Recommendation and
that Petitioner had requested that the court dismiss the action without prejudice. Id. at ECF Nos.
12 and 13. This court now proceeds to determine Petitioner’s third Petition for Writ of Habeas
Corpus.
II. LEGAL STANDARD AND ANALYSIS
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02 for the District of South Carolina.
recommendation to this court.

The Magistrate Judge makes only a

The recommendation has no presumptive weight.

The

responsibility to make a final determination remains with this court. See Matthews v. Weber, 423
U.S. 261, 270-71 (1976). This 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 Magistrate Judge’s recommendation, or recommit the matter with
instructions. See 28 U.S.C. § 636 (b)(1).
Objections to a Report and Recommendation must specifically identify portions of the
Report and the basis for those objections. Fed. R. Civ. P. 72(b). “[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

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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, 316 (4th Cir. 2005) (quoting Fed. R. Civ.
P. 72 advisory committee’s note). Failure to timely file specific written objections to a Report will
result in a waiver of the right to appeal from an Order from the court based upon the Report. 28
U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841
(4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). If the petitioner fails
to properly object because the objections lack the requisite specificity, then de novo review by the
court is not required.
On December 12, 2016, Petitioner filed objections stating that the State of South Carolina
did not prove all the elements on his weapon offense indictment. (See ECF No. 12.) As Petitioner
is a pro se litigant, the court is required to liberally construe his arguments. Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments that, under the mandated
liberal construction, it has reasonably found to state a claim. Barnett v. Hargett, 174 F.3d 1128,
1133 (10th Cir. 1999).
Petitioner previously filed two § 2254 petitions in this court, which establishes that his third
Petition qualifies as a “second or successive habeas corpus application.” 28 U.S.C. § 2244(b).
Accordingly, a prisoner seeking to file a second or successive § 2254 petition must first file a
motion in the appropriate United States Court of Appeals for an order authorizing the district court
to consider the petition. See 28 U.S.C.§ 2244(b)(3)(A); 28 U.S.C. § 2255. Because Petitioner
failed to obtain permission from the United States Court of Appeals for the Fourth Circuit to file
a second or successive § 2254 petition in the district court as the statute requires, this district court
does not have subject matter jurisdiction over his case.

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Furthermore, the application must either “rel[y] on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, or
“the factual predicate for the claim could not have been discovered previously through the exercise
of due diligence, and “ 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 for the
underlying offense.” 28 U.S.C. §§ 2244(b)(2)(A); 2244(b)(2)(B)(i) and (ii). Given that Petitioner’s
Objections only state that the State of South Carolina failed to prove all the elements of his weapon
offense (ECF No. 12.), Petitioner failed to fulfil any of these criteria. Even if Petitioner might
have raised a different claim, it is not based on either a new rule of constitutional law or facts
undiscoverable at the time of the previous petitions. See 28 U.S.C. § 2244(b)(2(A). Petitioner must
allege specific facts regarding his actual innocence claim that was unknown to him at the time he
filed his previous § 2254 petitions. Therefore, after a thorough and careful review of the Report
and the record regarding this issue, the court finds the Report provides an accurate summary of the
facts and law and adopts the Magistrate Judge’s recommendation.
III. CONCLUSION
Based on the aforementioned reasons and following a thorough review of the Report and
the record in this case, the court ACCEPTS the Magistrate Judge’s Report (ECF No. 10.) The
court DENIES Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 1). It is therefore
ORDERED that Petitioner’s Petition (ECF No. 1) in the above-captioned case is summarily
DISMISSED without prejudice and without requiring Respondent to file a return.

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Certificate of Appealability
The law governing certificates of appealability provides that:
(c)(2) A certificate of appealability may issue… only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability… shall indicate which specific issue or issues
satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists
would find this court’s assessment of his constitutional claims is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. 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 this case, the legal standard for the issuance of a certificate of
appealability has not been met.
IT IS SO ORDERED.

United States District Judge
April 11, 2017
Columbia, South Carolina

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