Simmons v. Cartledge

Filing 12

ORDER RULING ON REPORT AND RECOMMENDATION accepting 8 Report and Recommendation, dismissing Petition without prejudice and without requiring Respondent to file an Answer or return. Signed by Honorable J Michelle Childs on 10/15/2012. (jpet, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Michael Simmons,

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Petitioner,
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v.
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Larry Cartledge,
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Respondent.
)
____________________________________)

Civil Action No. 0:12-cv-02372-JMC

ORDER

This matter is before the court for review of the Magistrate Judge's Report and
Recommendation (“Report”), [Dkt. No. 8], filed on September 19, 2012, recommending that
Petitioner’s Petition for Writ of Habeas Corpus [Doc. 1], be dismissed without prejudice and without
requiring Respondent to file an Answer or return. The Magistrate Judge further recommends that
the Certificate of Appealability be denied. Petitioner sought habeas relief, pursuant to 28 U.S.C. §
2241. The Report sets forth the relevant facts and legal standards which this court incorporates
herein without a recitation.
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.

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 this court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The 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.
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§ 636(b)(1).
Petitioner was advised of his right to file objections to the Report [Dkt. No. 8 at 8].
However, Petitioner filed no objections to the Report.
In the absence of objections to the Magistrate Judge's Report, this court is not required to
provide an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199
(4th Cir. 1983). Rather, "in 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, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note). Furthermore,
failure to file specific written objections to the Report results in a party's waiver of the right to
appeal from the 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).
After a thorough review of the Report and Recommendation and the record in this case, the
court ACCEPTS the Magistrate Judge’s Report and Recommendation. [Dkt. No. 8]. It is therefore
ORDERED that Petitioner’s Petition for Writ of Habeas Corpus [Dkt. No 1], is DISMISSED
without prejudice and without requiring Respondent to file an Answer or return.
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

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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
Greenville, South Carolina
October 15, 2012

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