Simmons v. State
ORDER AND OPINION adopting the 6 Report and Recommendation, summarily dismissing the Petition for failure to state a claim upon which relief can be granted, and denying a certificate of appealability. Signed by Honorable Richard M. Gergel on 9/26/2017. (bgoo)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Case No. : 0:17-cv-1878
ORDER AND OPINION
This matter is before the Court on the Report and Recommendation ("R. & R.") of the
Magistrate Judge recommending that Petitioner's habeas petition be dismissed for failure to state
a claim upon which relief can be granted. (Dkt. No . 6.) For the reasons set forth below, this
Court adopts the R. & R. as the order of the Court. The habeas petition is dismissed for failure to
state a claim upon which relief can be granted.
a. Pro Se Pleadings
This Court liberally construes complaints filed by pro se litigants to allow the
development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v.
Kerner, 404 U.S. 519 (1972). The requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal
claim, nor can the Court assume the existence of a genuine issue of material fact where none
exists. See Weller v. Dep 't ofSocial Services, 901 F.2d 387 (4th Cir. 1990).
b. Magistrate's Report and Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with
making a de nova determination of those portions of the Report and Recommendation to which
specific objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l).
Where the plaintiff fails to file any specific objections, "a district court need not conduct a de
nova 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." See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted).
Petitioner is confined at the Charleston County Detention Center and is proceeding pro
se . He filed this case using a standardized habeas corpus form, or "Form AO 242." (Dkt. No. 1.)
As the Magistrate explained in the R. & R. , although Petitioner claims that several of his
constitutional rights have been violated, he has provided no information in the Supporting Facts
section of the form. Petitioner has attached some handwritten pages to the standardized form, but
those pages are incoherent. The Court cannot discern what information Petitioner intends to
convey and on what grounds he intends to proceed. Petitioner has not filed any objections to the
R. & R. This Court finds that the Magistrate has correctly applied the controlling law to the facts
of this case.
For the reasons set forth above, this Court adopts the R . & R. (Dkt. No. 6) as the order of the
Court. The Petition is summarily dismissed for failure to state a claim upon which relief can be
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
(c)(3) The certificate of appealability . . . shall indicate which
specific issue or issues satisfy the showing required by paragraph
28 U.S.C. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable jurists
would find this court' s assessment of his constitutional claims 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.
AND IT IS SO ORDERED.
United States District Court Judge
Lb , 2017
Charleston, South Carolina
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