Lisenby v. Reynolds, 5:12-cv-02666-DCN

Decision Date30 July 2013
Docket NumberNo. 5:12-cv-02666-DCN,5:12-cv-02666-DCN
CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
PartiesBILLY LEE LISENBY, JR., a/k/a Malik Al-Shabazz, Petitioner, v. CECILIA REYNOLDS, Warden, Respondent.
ORDER

Petitioner Billy Lee Lisenby, Jr., a state prisoner, seeks habeas corpus relief under 28 U.S.C. § 2254. Respondent Cecilia Reynolds filed a motion for summary judgment. The matter was reviewed by the magistrate judge, who, in a Report and Recommendation (R&R), recommends that respondent's motion for summary judgment be granted and the petition be denied. Petitioner filed objections to the R&R. For the reasons set forth below, the court adopts the magistrate judge's R&R and grants respondent's motion for summary judgment.

I. BACKGROUND

In April 2008, a grand jury charged Lisenby with two counts of assault with intent to kill (AWIK) and one count of failure to stop for a blue light. On April 21, 2008, Lisenby's jury trial began without him in attendance.1 He was found guilty on one count of AWIK and for failing to stop for a blue light, and sentenced to thirteen years' imprisonment. Lisenby filed a notice of appeal but later moved to withdraw it. On September 2, 2008, his appeal was dismissed.

Lisenby has earned Platinum status in the frequent filer club. He has filed an array of federal and state collateral challenges to his 2008 convictions and subsequent proceedings.

A. First PCR Application

On August 11, 2008, Lisenby filed an application for post-conviction relief (PCR), alleging, inter alia, ineffective assistance of trial counsel. He was represented by counsel at the PCR hearing. On February 6, 2009, the PCR court denied Lisenby's application. On February 12, 2009, Lisenby filed a Notice of Appeal of the denial of his first PCR application. After receiving several extensions, Lisenby filed a Petition for Writ of Certiorari on January 21, 2010, which the South Carolina Supreme Court denied on May 13, 2011. The remittitur was issued on June 1, 2011.2

B. First Federal Habeas Petition

While Lisenby's appeal of the denial of his first PCR application was pending, he filed a habeas corpus petition in federal court on March 12, 2009. On August 31, 2009, Lisenby moved for voluntary dismissal of the federal habeas petition. The magistrate judge issued an R&R on September 30, 2009, recommending dismissal without prejudice with leave to re-file once the state court resolved Lisenby's appeal of the denial of his first PCR application. Presciently, the magistrate judge "caution[ed] the Petitioner to be mindful of the AEDPA's one year statute of limitations period," noting that the limitations period would only be tolled while a "properly filed" PCR application was pending. R&R 12, No. 09-cv-00705, ECF No. 53. On October 26, 2009, this court affirmed the R&R and dismissed the first federal habeas petition without prejudice.

C. Second PCR Application

On September 17, 2009—prior to resolution of the appeal of the denial of his first PCR application—Lisenby filed a second PCR application. The PCR court dismissed Lisenby's ineffective assistance of counsel claims as untimely and successive on April 18, 2010, while finding his claim of newly discovered evidence to be without merit. On May 3, 2010, Lisenby filed a motion to alter or amend the judgment pursuant to Rule 59(e) of the South Carolina Rules of Civil Procedure. This motion was denied on August 4, 2010. An appeal was dismissed by the South Carolina Supreme Court on September 9, 2010.

D. Second Federal Habeas Petition

On October 5, 2009—while the above three actions were all pending—Lisenby filed a second federal habeas petition. On March 18, 2010, in response to a motion for summary judgment, Lisenby consented to a dismissal of the second federal habeas petition without prejudice. The magistrate judge issued an R&R on July 30, 2010, recommending dismissal without prejudice but once again "caution[ing] Petitioner to be mindful of the AEDPA's one year statute of limitations period." R&R 14, No. 09-cv-02627, ECF No. 56. On August 19, 2010, this court dismissed the second federal habeas petition without prejudice.

E. Third Federal Habeas Petition

On October 4, 2010, Lisenby filed a third federal habeas petition, again while the appeal of the denial of his first PCR application was pending. On April 20, 2011,Lisenby filed a motion for voluntary dismissal of the third federal habeas petition.3 The magistrate judge issued an R&R on May 31, 2011, recommending that the petition be dismissed without prejudice. On June 15, 2011, this court affirmed the R&R and dismissed the third federal habeas petition without prejudice.

F. Fourth Federal Habeas Petition

On October 8, 2010, Lisenby filed a fourth federal habeas petition. Lisenby failed to file a timely response to a motion for summary judgment. The magistrate judge ordered Lisenby to notify the court by September 27, 2011 whether he wished to prosecute his case. The deadline was extended to October 12, 2011. No response was filed. The magistrate judge issued an R&R on October 17, 2011, recommending dismissal with prejudice for failure to prosecute. On November 8, 2011, this court affirmed the R&R and dismissed the fourth federal habeas petition with prejudice.

G. Third PCR Application

On November 15, 2010, Lisenby filed a third PCR application. The state court dismissed Lisenby's ineffective assistance of counsel claims as untimely and successive on June 6, 2011, while finding his claim of newly discovered evidence to be without merit. On June 8, 2011, Lisenby filed a motion to alter or amend the judgment. This motion was denied on September 8, 2011. Lisenby appealed the denial of his third PCRapplication to the South Carolina Supreme Court. On October 25, 2011, his appeal was dismissed.

H. Fifth Federal Habeas Petition

On June 9, 2011, Lisenby filed a fifth federal habeas petition. On January 19, 2012, Lisenby filed a motion for voluntary dismissal of his petition. The court granted the motion and dismissed the fifth federal habeas petition without prejudice on January 23, 2012.

I. Fourth PCR Application

On June 29, 2011, Lisenby filed a fourth PCR application. The state court dismissed the action as untimely and successive on January 10, 2012. On July 16, 2012, the South Carolina Supreme Court dismissed Lisenby's appeal and prohibited him from "filing any further collateral actions in the circuit court challenging his convictions from 2008 . . . without first obtaining [the South Carolina Supreme Court's] permission." No. 12-cv-02666, ECF No. 46-1 at 2.

J. State Habeas Petition

On March 7, 2012, Lisenby filed a state habeas corpus petition, arguing his trial and PCR counsel erred by not pursing an insanity defense to his 2008 charges. The state court "summarily dismissed" the action on May 7, 2012, finding that Lisenby squandered multiple prior opportunities to raise the insanity issue and failed to state a claim upon which relief may be granted. No. 12-cv-02666, ECF No. 41-3. Lisenby appealed, and on January 23, 2013, the South Carolina Court of Appeals filed an order requiring Lisenbyto show cause why the denial of his state habeas petition was improper. Lisenby did not respond, and his appeal was dismissed on March 27, 2013.4

K. Sixth Federal Habeas Petition

On September 11, 2012,5 Lisenby filed his sixth and most recent federal habeas petition pursuant to 28 U.S.C. § 2254. In his petition, Lisenby claims: (1) trial counsel was ineffective in failing to notify Lisenby of his trial date, failing to object to the jury trial proceeding in his absence, failing to request a continuance, and failing to request a jury instruction as to his absence from the beginning of the trial; (2) trial counsel committed perjury by stating she notified Lisenby of his trial date by mail; (3) trial counsel violated Lisenby's right to be present at every stage of trial and pick his jurors; and (4) trial counsel failed to object to the charge of AWIK, which is no longer recognized in South Carolina. Lisenby filed an amended petition on December 18, 2012, raising additional ineffective assistance of counsel claims and other grounds for relief.

On February 13, 2013, respondent filed a motion for summary judgment. In her R&R, Magistrate Judge Kaymani D. West recommends that this court deny Lisenby's petition and grant respondent's motion for summary judgment. The magistrate judge did not address the merits of Lisenby's claims, finding this, Lisenby's sixth federal habeas petition, to be untimely. Lisenby filed objections to the R&R on June 4, 2013.

II. STANDARD OF REVIEW

Petitioner appears pro se in this case. Federal district courts are charged with liberally construing petitions filed by pro se litigants to allow for the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). Pro se petitions are therefore held to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Liberal construction, however, does not mean that the court may ignore a clear failure in the pleading to allege facts that set forth a cognizable claim. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

This court is charged with conducting a de novo review of any portion of the magistrate judge's R&R to which specific, written objections are made. 28 U.S.C. 636(b)(1). The court may adopt the portions of the R&R to which the petitioner did not object, as a party's failure to object is accepted as agreement with the conclusions of the magistrate judge. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The recommendation of the magistrate judge carries no presumptive weight, and it is this court's responsibility to make a final determination. Mathews v. Weber, 423 U.S. 261, 270-71 (1976).

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides relief to a person in custody pursuant to the judgment of a state court if the...

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