Opinion
6:21-cv-00648-SAL-KFM
05-17-2021
Kevin Gilliard, Petitioner, v. Warden Wise, Respondent.
Kevin F. McDonald United States Magistrate Judge
The petitioner, proceeding pro se and in forma pauperis, brings this action pursuant to 28 U.S.C. § 2254 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons set forth below, it is recommended that the petitioner's § 2254 petition be summarily dismissed.
ALLEGATIONS
Petitioner's Conviction and Sentence
The petitioner is currently serving a sentence of twenty-five years' imprisonment for trafficking in crack cocaine, imposed by the Anderson County General Sessions Court. See Anderson County Public Index, https://publicindex.sccourts.org/ Anderson/PublicIndex/PISearch.aspx (enter the petitioner's name and J896841) (last visited May 17, 2021). The petitioner appealed, but his conviction and sentence were upheld, and a writ of certiorari by the South Carolina Supreme Court was dismissed as improvidently granted. State v. Gilliard, C/A No. 2009-147948, 2012 WL 10844351 (S.C. Ct. App. June 13, 2012), writ dismissed as improvidently granted by 2015 WL 4348912 (S.C. July 15, 2015).
The court takes judicial notice of the records in the petitioner's criminal case in the Anderson County General Sessions Court, as well as the petitioner's post-conviction relief action in the Anderson County Court of Common Pleas and a prior action in this court brought pursuant to § 2254. See Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial notice of matters of public record.”); 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.'”).
Petitioner's Prior Collateral Attacks in the State Court
On September 1, 2015, the petitioner filed a post-conviction relief action (“PCR”) in the Anderson County Court of Common Pleas. See Anderson County Public Index (enter the petitioner's name and 2015-CP-04-02068). In the PCR petition, the petitioner raised grounds of ineffective assistance of counsel (“IAC”) for failing to challenge the lack of a preliminary hearing provided for the petitioner, for failing to call witnesses, for not making a Franks motion, for failing to challenge the missing booking area video, for failing to exclude testimony about marijuana found on the petitioner, and because the petitioner received a sentence enhancement in error. Id. The petitioner's application also noted a conflict of interest, problems with the indictment, prosecutorial misconduct, and judicial misconduct. Id. The petitioner's PCR was denied on December 28, 2016. Id. The petitioner appealed, but his appeal was denied. See Gilliard v. State of S.C., C/A No. 2017000071 (S.C.).
Franks v. Delaware, 438 U.S. 154 (1978).
Petitioner's Prior Collateral Attacks in this Court
The petitioner then filed a federal habeas petition in this court pursuant to § 2254 on August 31, 2018. Gilliard v. Joyner, C/A No. 6:18-cv-02417-SAL (D.S.C.). The petition was denied on the merits based upon procedural default (for all but Ground 5), and because the petitioner failed to demonstrate IAC under Strickland with respect to Ground 5. Gilliard v. Joyner, C/A No. 6:18-v-02417-SAL, 2020 WL 2198896 (D.S.C. Apr. 7, 2020), Report and Recommendation adopted by 2020 WL 2192703 (D.S.C. May 6, 2020). The petitioner appealed, and the appeal remains pending at this time. Gilliard v. Joyner, C/A No. 20-6908 (4th Cir.).
Petitioner's Present Action
The petitioner then filed this action, arguing that under Slack v. McDaniel, 529 U.S. 473 (2000), he has the ability to file a second petition because his previous one was not adjudicated on the merits (doc. 1). For relief, the petitioner seeks to have his conviction vacated, reversed, and remanded (id. at 22).
STANDARD OF REVIEW
The undersigned has reviewed the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
On April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 (the “AEDPA”) amended 28 U.S.C. § 2254 and other habeas statutes:
The AEDPA effected a number of substantial changes regarding the availability of federal postconviction relief to individuals convicted of crimes in federal and state courts. Of particular importance here are the provisions of the AEDPA codifying and extending judicially constructed limits on the consideration of second and successive applications for collateral relief. Under the AEDPA, an individual may not file a second or successive § 2254 petition for a writ of habeas corpus or § 2255 motion to vacate sentence without first receiving permission to do so from the appropriate circuit court of appeals.In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (footnote and internal citation omitted). The “gatekeeping” mechanism created by the AEDPA amended § 2244(b) to provide:
The prospective applicant must file in the court of appeals a motion for leave to file a second or successive habeas application in the district court. A three-judge panel has 30 days to determine whether “the application makes a prima facie showing that the application satisfies the requirements of” § 2244(b).Felker v. Turpin, 518 U.S. 651, 657 (1996) (internal citations omitted).
The instant action qualifies as a second or successive § 2254 action because the petitioner has previously filed a § 2254 petition, which was denied on the merits. Gilliard v. Joyner, C/A No. 6:18-cv-02417-SAL, 2020 WL 2192703 (D.S.C. May 6, 2020), appeal pending C/A No. 20-6908 (4th Cir.). As noted, the petitioner argues that this petition is not successive based upon Slack; however, the holding in Slack is in applicable to this matter. In Slack, the Supreme Court found that a habeas petition filed after “an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition.” Slack, 529 U.S. at 485-86. Here, the petitioner's prior petition was adjudicated on the merits and denied based upon procedural default (for all but Ground 5), as well as that the petitioner failed to demonstrate IAC under Strickland with respect to Ground 5, not for failure to exhaust. Gilliard v. Joyner, C/A No. 6:18-cv-02417-SAL, 2020 WL 2198896 (D.S.C. Apr. 7, 2020), Report and Recommendation adopted by 2020 WL 2192703 (D.S.C. May 6, 2020), appeal pending C/A No. 20-6908 (4th Cir.). Indeed, the Report and Recommendation specifically noted that “the petitioner has technically exhausted his state court remedies.” Id. at *7. As such, the petitioner may not utilize Slack to bring this successive § 2254 petition.
Nevertheless, 28 U.S.C. § 2244(b)(2) provides that in some circumstances a petitioner may bring a second or successive § 2254 action. That statute permits a court of appeals to determine whether to authorize a successive petition. Thus, the United States Court of Appeals for the Fourth Circuit-not this District Court-is the proper tribunal to decide whether to authorize a successive § 2254 petition. See United States v. Winestock, 340 F.3d 200, 205-06 (4th Cir. 2003), abrogated in part on other grounds by United States v. McRae, 793 F.3d 392 (4th Cir. 2015). Because it appears that the petitioner did not obtain authorization from the Fourth Circuit Court of Appeals to file this petition, this Court does not have jurisdiction to consider it. Id.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2254 petition be dismissed without requiring the respondent to file an answer or return. The attention of the parties is directed to the important notice on the next page.
The petitioner cannot cure the deficiencies noted herein; however, dismissal without prejudice is recommended because the Court of Appeals has held that dismissals for lack of subject-matter jurisdiction must be without prejudice. S. Walk at Broadlands Homeowner's Assn v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they 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:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street, Room 239
Greenville, South Carolina 29601
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).