Petition for Writ of Certiorari — Geneva Elaine Hames, Petitioner v. Patricia Yeldell, Warden

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-6697

GENEVA ELAINE HAMES,

Petitioner Appellant,

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V.

WARDEN LEATH CORRECTIONAL INSTITUTION,

Respondent Appellee.

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Appeal from the United States District Court for the District of South Carolina, at

Florence. Cameron McGowan Currie, Senior District Judge. (4:18-cv-01026-CMC)

Submitted: October 2, 2018

Decided: October 11, 2018

Before KING and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Geneva Elaine Harnes, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Geneva Elaine Harries seeks to appeal the district court's order adopting the

recommendation of the magistrate judge and dismissing as successive and unauthorized

her 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice

or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A)1

2012). 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) (2012). When the district court denies

relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable

jurists would find that the district 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

constitutional right. Slack, 529 U.S. at 48445.

We have independently reviewed the record and conclude that Hames has not

made the requisite showing. Accordingly, we deny a certificate, of appealability and

dismiss the appeal. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

DISMISSED

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

FLORENCE DIVISION

Geneva Elaine Hames, #322393,

C/A No. 4:I8-1026-CMC

Petitioner,

V.

Opinion and Order

Warden, Leath Correctional Institution,

Respondent.

This matter is before the court on Petitioner's pro se petition filed pursuant to 28 U.S.C.

§2254 on April 13, 2018. ECF No. I. Petitioner challenges her convictions and sentence in state

court for grand larceny, kidnapping, assault and battery with intent to kill, armed robbery, and

first degree burglary.

In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (13)(2)(c), DSC, this

matter was referred to United States Magistrate Judge Thomas E. Rogers, Ill, for pre-trial

proceedings and a Report and Recommendation. On May 14, 2018, the Magistrate Judge issued

a Report recommending this matter be dismissed as successive. ECF No. 13. The Magistrate

Judge advised Petitioner of the procedures and requirements for filing objections to the Report

and the serious consequences if she failed to do so. On May 24, 2018, Petitioner filed objections

to the Report.

he Magistrate Judge makes only a recommendation to this curt. The recommendation

has

and the responsibility to makë.final determination remains with the

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court. Mathevvsv Weber, 423 U.S. 261 (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

4:18-cv-01026-CMC Date Filed 05/29/18

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Entry Number 18 Page 2 of 3

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may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge,

or recommit the matter to the Magistrate Judgejtj instructions. 28 U.S.C.

636(bX1).

After conducting a de novo review of the record as to the objections made, and after

considering the applicable law, the Report and Recommendation of the Magistrate Judge, and

Petitioner's objections, the court agrees with the conclusions of the Magistrate Judge.

Petitioner's previous

2254 petition was dismissed with prejudice and summary judgment

granted for Respondent; tlerefore, it was dismissed on the merits and the instant petition is

successive. In her objections, Petitioner asserts she has obtained permission to file a successive

§ 2254 petition, and attached a Final Local Rule 40(d) Notice she received from the Fourth

Circuit. However, the Rule 40(d) notice is not such a grant of permission, but merely notes no

further action will be taken by the Fourth Circuit on her appeal of

petition,

despite continued filings by Petitioner.

rto filing a second or successive petition under § 2254, Petitioner must obtain

certification by a panel of the Fourth Circuit Court of Appeals allowing her to file a second or

s,ssiie_petition. As provided in 28 U.S.C. § 2244, "[b]efore a second or successive

application permitted by this section is filed in the distr ictt,, the applicant shal.]_move in the

appropriate court of appeals for an order authorizing the district court to consider the,

application." 28 U.S.C. § 2244(b)(3)(A). This she h

Snot done. Therefore, this petition is

successive in nature and the court is without jurisdiction to consider it. Accordingly, the court

adopts and incorporates the Report and Recommendation by reference into this Order. This

matter is dismissed without prejudice and without requiring Respondent to file a return.

CERTIFICATE OF APPEALABILITY

The governing law provides that:

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(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. Therefore, a certificate of appealability is denied.

IT IS SO ORDERED.

s/Cameron McGowan Currie

CAMERON MCGOWAN CURRIE

Senior United States District Judge

Columbia, South Carolina

May 29, 2018

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4:18-cv-01026-CMC Date Filed 05/14118

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Entry Number 13 Page 1 of 5

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UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Geneva Elaine Haines, #322393,

Petitioner,

vs.

Warden, Leath Correctional Institution,

Respondent.

) C/A No. 4:18-1026-CMC-TER

)

)

)

)

Report and Recommendation

)

)

)

)

Petitioner, proceeding pro Se, 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 Rule 73.02(1B)(2)(c),

D.S.C., the undersigned is authorized to review such petitions for relief and submit findings

recommendations to the District Court.

and

et ion is subject to dismissal because it is successive

and presented without an order from the Fourth Circuit Court of Appeals authorizing this Court

to

consider a successive petition.

DISCUSSION

Under established local procedure in this judicial district, .a careful review has been made of

the prose pleadings and motion to proceed informapauperis pursuant to the procedural provision

s

of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996.

.

The review

has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992);

Neitzke v. Williams, 490 U.S. 319, 324-25 (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); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978);

and

Gordon :Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is apro se litigant, and thus

his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(p

er

e.

4:18-cv-01026-CMC Date Filed 05/14/18

Entry Number 13 Page 2 of 5

curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent

standard, the petition is

subj ect 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,

390-91 (4th Cir.

1990)

Furthermore, this court is charged with screening Petitioner's lawsuit to

determine if "it

plainly appears from the petition and any attached exhibits that the petitioner

is not entitled to relief

in the district court." Rule 4 of Rules Governing Section 2254 Cases in the

United States District

Courts. Following the required initial review, it is recommended that the Petition

submitted in this

case should be summarily dismissed due to being succesive.

With respect to Petitioner's convictions and sentences, Petitioner's sole federal

a writ of habeas corpus under either 28 U.S.C.

remedies are

§ 2254 or 28 U.S.C. § 2241, which remedies can be

sought only after the Petitioner has exhausted his state court remedies. "It is

the rule in this country

that assertions of error in criminal proceedings must first be raised in state court

in order to form the

basis for relief in habeas. Claims not so raised are considered defaulted." Beard v.

371, 375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)); see also 28

Green, 523 U.S.

U.S.C. § 2254(b);

Braden v. 30th Judicial Circuit Court, 410 U.S. 484,490-91 (1973); Picard v. Connor

, 404 U.S. 270

(1971).

Petitioner has filed a previous § 2254 petition in this Court challenging the same convict

ion

and sentence challenged herein: counts for grand larceny, kidnapping, assault

and battery with intent

to kill, armed robbery, and burglary, first degree(dwelling). (ECF No. 1); Hames

v. Warden, Leath,

No. 4: 11-cv-710-CMC. This Court may take judicial notice of filings in Petition

er's prior § 2254

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Entry Number 13 Page 3 of 5

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case (4:11-cv-710-CMC), including the Order adopting the Report and Recom

mendation and

granting Respondent's motion for summary judgment and dismissing the petition

See Slaughter v. Wright, 135 F.2d 613, 615 (4th Cir. 1943).. The instant

with prejudice.

Petition is therefore

successive, and is subject to summary dismissal.

The standard for determining whether a petition is successive appears in Slack

529 U.S. 473, 485-89 (2000). A successive habeas petition cannot be

v. McDaniel,

filed without first obtaining

pre-filing authorization from the court of appeals. 28 U.S.C. 2244(b)(3)(A)

; Jn re Williams, 444

F.3d 233, 235 (4th Cir. 2006). To be considered successive, the second habeas

petition must be the

second attack of the same conviction and the first habeas petition must have been

on the merits. See Williams, 444 F.3d at 236. ' A summary judgment grant

finally adjudicated

in favor of a respondent,

regardless of addressing any procedural bar, is considered an adjudication on

the merits. "Dismissal

of a habeas petition for procedural default is a dismissal on the merits for purpose

s of determining

whether a habeas petition 1§ successive." Harvey v. Koran. 278 F.3d 370, 379

(4th Cir. 2002)

abrogated on other grounds by Skinner v. Switzer, 562 U.S. 521(2011). Becaise

the instant Petition

is the second attack of the same conviction and the first petition's adjudication

is considered to he

on the merits, the instant Petition is successive. Therefore, since Petition

er did not first obtain

permission from the Fourth Circuit Court of Appeals to file this successive 2254

Petition, this court

§

does not have jurisdiction over Petitioner's instant Petition, and thus, the

summary dismissal.

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Petition is subject to

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4:18-cv-01026-CMC Date Filed 05/14/18 Entry

Number 13 Page 4 of 5

4.

RECOMMENDATION

Accordingly, it is recommended that the

§ 2254 Petition in this case be dismissed without

prejudice and without requiring the respondent tojule a return

, as successive and unauthorized.

IT IS SO ORDERED.

s/Thomas E. Rogers, III

Thomas E. Rogers, ifi

United States Magistrate Judge

May 14, 2018

Florence, South Carolina

Petitioner's attention is directed to the important notic

e, on the next page.

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