Prather v. Cartledge

Filing 25

ORDER ADOPTING 19 REPORT AND RECOMMENDATION. This case is dismissed without prejudice and without service of process and the certificate of appealability is denied. Signed by Honorable Richard M Gergel on 3/19/2012. (abuc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

James D. Prather,
Petitioner,
vs.
Leroy Cartledge,
Respondent.

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Civil Action No.1: 11-3176-RMG

ORDER

This is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
(Dkt. No.1). This case was automatically referred to the United States Magistrate Judge for all
pre-trial proceedings pursuant to 28 U.S.C. §636(b) and Local Rule 73.02(b)(2), D.S.C.
Petitioner acknowledges that he has a pending state court PCR proceeding in which he has
unexhausted state court remedies but complains about the delay in the completion of these state
court proceedings. The Magistrate Judge issued a Report and Recommendation recommending
that this Court dismiss the petition without prejudice and without service of process. (Dkt. No.
19). Petitioner has filed no objection to the Magistrate Judge's Report and Recommendation.
The Court hereby adopts the Magistrate Judge's Report and Recommendation as the Order of
this Court.
Lawl Analysis
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and responsibility for making a final determination remains with this

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Court. Mathews v. Weber, 423 U.S. 261, 270-271 (1976). This Court is charged with making a

de novo determination of those portions of the Report and Recommendation to which specific
objection has been made. The Court may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). The United States
Supreme Court observed in Thomas v. Arn, 474 U.S. 140, 150 (1985) that "[ilt does not appear
that Congress intended to require district court review of a magistrate's factual or legal
conclusions, under de novo review or any other standard, when neither party objects to those
findings."
In this matter, the Magistrate Judge found that Petitioner had a pending state court PCR
proceeding and unexhausted state appellate remedies. (Dkt. No. 19 at 4). It is well settled that a
petitioner in a habeas proceeding with unexhausted state remedies is generally not entitled to
federal habeas relief. Pitchess v. Davis, 421 U.S. 482,490 (1975). Further, as the Magistrate
Judge noted, dismissal without prejudice of the § 2254 petition preserves the Petitioner's
subsequent right to file a non-successive § 2254 petition. (Dkt. No. 19 at 5). In light of the well
reasoned Report and Recommendation and the failure of Petitioner to file any objection,
dismissal without prejUdice and without service of process is clearly the appropriate decision in
this matter.

Conclusion
After carefully reviewing the petition in this matter, the Magistrate Judge's Report and
Recommendation and the relevant case law, the Court hereby adopts the Report and
Recommendation as the order of this Court. Therefore, this case is DISMISSED WITHOUT

PREJUDICE AND WITHOUT SERVICE OF PROCESS.
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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 in paragraph (2).

28 U.S.C. § 2253(c).

A prisoner satisfies the standard by demonstrating that reasonable jurists would find this
Court's assessments of his constitutional claims debatable or wrong and than any dispositive
procedural ruling is likewise debatable. 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 issuance of a certificate of appealability has not been met. Therefore,
the certificate of appealability is hereby DENIED.
AND IT IS SO ORDERED.

Ri ard Mark Gerge
United States District Judge

Charleston, South Carolina
March /1,2012

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