Brown v. Lewis
OPINION AND ORDER adopting the 10 Report and Recommendation, dismissing the action without prejudice and without requiring Respondent to file a return, and denying a certificate of appealability. Signed by Honorable Cameron McGowan Currie on 8/30/2017. (bgoo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
C/A No. 0:17-1470-CMC
Opinion and Order
Warden Scott Lewis,
This matter is before the court on Petitioner’s pro se petition filed in this court pursuant to
28 U.S.C. §2254 on June 5, 2017. ECF No. 1. Petitioner challenges his conviction, raising claims
of ineffective assistance of trial and post-conviction relief (“PCR”) counsel, and newly discovered
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(c), DSC, this
matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings
and a Report and Recommendation. On August 9, 2017, the Magistrate Judge issued a Report
recommending this matter be dismissed as successive. ECF No. 10. The Magistrate Judge advised
Petitioner of the procedures and requirements for filing objections to the Report and the serious
consequences if he failed to do so. Petitioner filed no objections within the time for doing so, and
his copy of the Report was not returned to the court.
The Magistrate Judge makes only a recommendation to this 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 (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
may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The court
reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life &
Accident 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 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.’”)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
After reviewing the record, the applicable law, and the Report and Recommendation of the
Magistrate Judge, the court finds no clear error. As Petitioner’s previous § 2254 was dismissed
with prejudice for failure to prosecute, it was a dismissal on the merits and the instant petition is
successive. 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:
(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
August 30, 2017
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