Bells v. Holland

Filing 14

ORDER RULING ON REPORT AND RECOMMENDATION adopting 10 Report and Recommendation, dismissing petition without prejudice and without requiring Respondent to file a return. IT IS FURTHER ORDERED that a certificate of appealability is denied. Signed by Honorable R Bryan Harwell on 12/14/2015. (jpet, )

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION Charlie Bells, Jr., ) ) Petitioner, ) ) v. ) ) James C. Holland, ) ) Respondent. ) ______________________________) Civil Action No.: 0:15-cv-04328-RBH ORDER Petitioner Charlie Bells, Jr., a federal prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See ECF No. 1. Petitioner is currently incarcerated at United States Penitentiary McCreary, which is located in Pine Knot, Kentucky. See ECF No. 1-1 (Petitioner’s envelope from USP-McCreary). The matter is now before the Court for review of the Report and Recommendation (R & R) of United States Magistrate Judge Paige J. Gossett.1 See R & R, ECF No. 10. The Magistrate Judge recommends the Court summarily dismiss Petitioner’s § 2241 petition without prejudice and without requiring Respondent to file a return. R & R at 1, 7. The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a de novo review of those portions of the R & R to which specific objections are made, and it may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). Neither party has filed objections to the R & R. In the absence of objections to the R & R, the 1 This matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c) for the District of South Carolina. Court is not required to give any explanation for adopting the Magistrate Judge’s recommendations. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The Court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, a district court need not conduct 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’” (quoting Fed. R. Civ. P. 72 advisory committee’s note)). Furthermore, 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). The Fourth Circuit has held that a district court’s order denying relief on a petition pursuant to 28 U.S.C. § 2241 is not appealable unless a circuit justice or judge issues a certificate of appealability. See, e.g., Garvin v. Wright, 583 F. App’x 287, 287 (4th Cir. 2014) (citing 28 U.S.C. § 2253(c)(1)(A)). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate (1) the dispositive procedural ruling is debatable and (2) the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. In the instant case, the Court concludes that Petitioner has failed to make the requisite showing of “the denial of a constitutional right.” After a thorough review of the record in this case, the Court finds no clear error. Accordingly, the Court adopts and incorporates by reference the R & R [ECF No. 10] of the Magistrate Judge. IT IS THEREFORE ORDERED that Petitioner’s § 2241 petition is DISMISSED without prejudice and without requiring Respondent to file a return. IT IS FURTHER ORDERED that a certificate of 2 appealability is DENIED because Petitioner has failed to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. Florence, South Carolina December 14, 2015 s/ R. Bryan Harwell R. Bryan Harwell United States District Judge 3

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