Kelly v. South Carolina
ORDER AND OPINION accepting the 6 Report and Recommendation, summarily dismissing the action without prejudice and without requiring Respondent to file a return, dismissing with prejudice Petitioner's 9 motion for leave to file a pre-filing application, and finding that the legal standard for the issuance of a certificate of appealability has not been met. Signed by Honorable J. Michelle Childs on 6/6/2017. (bgoo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Walter Coleman Kelly, Jr.,
Civil Action No.: 0:17-cv-00877-JMC
ORDER AND OPINION
Petitioner Walter Coleman Kelly, Jr. (“Petitioner”) filed this Pro se Petition under 28
U.S.C. § 2254 for Writ of Habeas Corpus (“Petition”). (ECF No. 1.) Petitioner alleges ineffective
assistance of trial counsel, involuntary plea agreement, illegal search, and 4th, 5th, 6th, 8th, 13th, and
14th amendment and due process violations. (Id. at 1-5.)
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to
United States Magistrate Judge Paige J. Gossett for pre-trial handling. On April 28, 2017, the
Magistrate Judge issued a Report and Recommendation (“Report”) recommending the court to
summarily dismiss Petitioner’s Complaint without prejudice and without requiring Respondent to
file a return.
(ECF No. 6.)
This review considers Petitioner’s Objection to Report and
Recommendation (“Objections”), filed on May 17, 2017. (ECF No. 8.) For the reasons set forth
herein, the court ACCEPTS the Magistrate Judge’s Report. The court thereby summarily
DISMISSES Petitioner’s Complaint (ECF No. 1) without prejudice and without requiring
Respondent to file a return.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts viewed in the light most favorable to Petitioner are discussed in the Report. (See
ECF No. 6.) The court concludes, upon its own careful review of the record, that the Magistrate
Judge’s factual summation is accurate and incorporates it by reference. The court will only recite
herein facts pertinent to the analysis of Petitioner’s Objections.
Petitioner is incarcerated at Perry Correctional Institution within the South Carolina
Department of Corrections. (ECF No. 1 at 1.) Petitioner states he pled guilty to manslaughter in
the Spartanburg County Court of General Sessions on January 19, 2010, and was sentenced to
thirty (30) years’ imprisonment. (Id. at 2.) In 2014, Petitioner filed a Petition under 28 U.S.C. §
2254 for Writ of Habeas Corpus challenging his 2010 manslaughter conviction. The court granted
Respondent’s Motion for Summary Judgment in that case. Kelly v. McFadden, No. 0:14-3870JMC (D.S.C. Aug. 27, 2015) at ECF No. 33.
Petitioner now brings another § 2254 habeas corpus petition. (ECF No. 1.) The Magistrate
Judge recommended the court to summarily dismiss this case without prejudice and without
requiring Respondent to file a return. (ECF No. 6.) The Magistrate Judge determined that
Petitioner raised issues in this matter that were previously raised in his 2014 habeas corpus petition,
as well as other issues that had not been presented to the court. (Id. at 2.) The Magistrate Judge
further determined that Petitioner failed to obtain authorization from the United States Court of
Appeals for the Fourth Circuit prior to filing a successive habeas corpus petition. (Id. at 3.)
II. STANDARD OF REVIEW
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.
recommendation to this court.
The Magistrate Judge makes only a
The recommendation has no presumptive weight.
responsibility to make a final determination remains with this court. See Matthews v. Weber, 423
U.S. 261, 270-71 (1976). This 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. § 636 (b)(1).
Objections to a Report and Recommendation must specifically identify portions of the
Report and the basis for those objections. Fed. R. Civ. P. 72(b). “[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, 316 (4th Cir. 2005) (quoting Fed. R. Civ.
P. 72 advisory committee’s note). Failure to timely file specific written objections to a Report will
result in a waiver of the right to appeal from an Order from the court based upon the Report. 28
U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841
(4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). If the plaintiff fails to
properly object because the objections lack the requisite specificity, then de novo review by the
court is not required.
As Plaintiff is a pro se litigant, the court is required to liberally construe his arguments.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments that,
under the mandated liberal construction, it has reasonably found to state a claim. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).
Petitioner’s Objections lack the requisite specificity required by Federal Rule of Civil
Procedure 72(b). In his Objections, Petitioner merely asserts that “the case should not be
summarily dismissed, [sic] for failure to file a pre-filing application. Instead the courts [sic] should
grant petitioner’s motion for leave to file a pre-filling application, and hold this case in abatement
until the court has a chance to rule upon this case.” (ECF No. 8 at 1.) Additionally, Petitioner
fails to allege any facts showing that he received prior authorization from the United States Court
of Appeals for the Fourth Circuit on this successive § 2254 petition.1 Since Petitioner failed to
properly object to the Report with specificity, the court does not need to conduct a de novo review
and instead must “only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.” Diamond, 416 F.3d at 315. The court does not find clear error and
accepts the Report by the Magistrate Judge.
Based on the aforementioned reasons and a thorough review of the Report and
Recommendation of the Magistrate Judge and the record in this case, the court ACCEPTS the
Report and Recommendation of the Magistrate Judge (ECF No. 6). It is therefore ordered that
Petitioner’s Complaint (ECF No. 1) is summarily DISMISSED without prejudice and without
requiring Respondent to file a return.
Petitioner filed a Pro se motion in this court seeking authorization to file a successive § 2254
habeas application from the United States Court of Appeals for the Fourth Circuit. See 28 U.S.C.
§ 2244(b)(3)(A) (requiring an applicant seeking to file successive habeas application to “move in
the appropriate court of appeals for an order authorizing the district court to consider the
application”). Petitioner filed a motion for leave to file a pre-filing application. (ECF No. 9.)
However, Petitioner has not provided the court with any persuasive reasoning to grant such a
request. Therefore, Petitioner’s motion for leave to file a pre-filing application (ECF No. 9) is
dismissed with prejudice. Additionally, pursuant to Rule 11(a) of the Rules Governing Section §
2254 petitions, the court declines to issue a certificate of appealability as Petitioner has not made
a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2). A prisoner
satisfies this standard by demonstrating that reasonable jurists would find this court’s assessment
of her 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.
J. Michelle Childs
United States District Judge
June 6, 2017
Columbia, South Carolina
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