Corley v. Bush

Filing 13

ORDER adopting the 9 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 R. Bryan Harwell on 10/3/2017. (bgoo)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Stephen Corley,

)
)
Petitioner,
)
)
v.
)
)
Dennis Bush, Warden of
)
Broad River Corr. Institution,)
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Respondent.
)
________________________)

Civil Action No.: 0:17-cv-01607-RBH

ORDER

Petitioner Stephen Corley, a state prisoner proceeding pro se, initiated this action by filing a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See ECF No. 1. The matter is before
the Court for review of the Report and Recommendation (R & R) of United States Magistrate Judge
Paige J. Gossett, who recommends summarily dismissing Petitioner’s § 2254 petition as successive.1
See ECF No. 9.
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 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 R & R 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 with instructions. See 28 U.S.C. § 636(b)(1).
Petitioner has not filed objections to the R & R, and the time for doing so has expired.2 In the

1

This matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(c) (D.S.C.).

2

Petitioner’s objections were due by September 15, 2017. See ECF Nos. 9 & 10.

absence of objections to the R & R, the 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)).
“The district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rule 11(a) of the Rules Governing Section 2254 Cases. 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). When the district court denies relief on the merits, a petitioner 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 Miller-El
v. Cockrell, 537 U.S. 322, 336–38 (2003). When the district court denies relief on procedural grounds,
the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the
petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484–85. Here,
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 Magistrate Judge’s R & R [ECF No. 9]. The Court
DISMISSES this action without prejudice and without requiring Respondent to file a return. The Court
DENIES a certificate of appealability because Petitioner has not made “a substantial showing of the
denial of a constitutional right” under 28 U.S.C. § 2253(c)(2).
2

IT IS SO ORDERED.

Florence, South Carolina
October 3, 2017

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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