McDaniels v. Owen
ORDER accepting 10 Report and Recommendation, dismissing this case without prejudice and without issuance and service of process. Additionally, the Court concludes that it is not appropriate to issue a certificate of appealability. Signed by Honorable Terry L Wooten on 8/17/2012.(abuc) Modified to edit text on 8/17/2012 (abuc).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Kevin Wayne McDaniels,
John R. Owen, Warden at FCI
Civil Action No.: 1:12-cv-642-TLW-SVH
The petitioner, Kevin Wayne McDaniels (“petitioner”), brought this civil action, pro se,
pursuant to 28 U.S.C. § 2254 on March 7, 2012. (Doc. # 1).
This matter now comes before this Court for review of the Report and Recommendation (“the
Report”) filed by United States Magistrate Judge Shiva V. Hodges to whom this case had previously
been assigned. (Doc. # 10). In the Report, the Magistrate Judge recommends that the District Court
dismiss this case without prejudice and without issuance and service of process. (Doc. # 10). The
petitioner filed objections to the Report. (Doc. # 12). In conducting this review, the Court applies
the following standard:
The magistrate judge makes only a recommendation to the Court, to which any party
may file written objections . . . . The Court is not bound by the recommendation of
the magistrate judge but, instead, retains responsibility for the final determination.
The Court is required to make a de novo determination of those portions of the report
or specified findings or recommendation as to which an objection is made. However,
the Court is not required to review, under a de novo or any other standard, the factual
or legal conclusions of the magistrate judge as to those portions of the report and
recommendation to which no objections are addressed. While the level of scrutiny
entailed by the Court’s review of the Report thus depends on whether or not
objections have been filed, in either case the Court is free, after review, to accept,
reject, or modify any of the magistrate judge’s findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992)
In the Report, the Magistrate Judge recommends dismissal because the petitioner has not
exhausted his state remedies. (Doc. # 10). More specifically, the Magistrate Judge found that the
petitioner did not appeal the dismissal of his post-conviction relief application to a higher state court.
(Doc. # 10). In his objections, the petitioner states he relied on his court-appointed counsel in not
pursuing further litigation. (Doc. # 12). Where a habeas petitioner has failed to exhaust his state
remedies and the state court would now find his claims procedurally barred, further exhaustion is
not required. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). However, federal habeas review
of a procedurally defaulted claim “is barred unless the prisoner can demonstrate cause for the default
and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of justice.” Id. at 750. The alleged
ineffectiveness of the petitioner’s attorney is not sufficient cause for any procedural default that may
have occurred. There is no constitutional right to an attorney in state post-conviction proceedings
and where there is no constitutional right to counsel there can be no deprivation of effective
assistance. See id. at 752-54; Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (per curiam). The
petitioner has presented no basis in fact or law that shows cause for any defaulted claims. The
petitioner also has not demonstrated that failure to consider his claims will result in a fundamental
miscarriage of justice. See Coleman, 501 U.S. at 750.
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report and
the objections. After careful review of the Report and objections thereto, the Court ACCEPTS the
Report. (Doc. # 10). Therefore, for the reasons articulated by the Magistrate Judge, this case is
DISMISSED without prejudice and without issuance and service of process.
The Court has reviewed this petition in accordance with Rule 11 of the Rules Governing
Section 2254 Proceedings. The Court concludes that it is not appropriate to issue a certificate of
appealability as to the issues raised herein. The petitioner is advised that he may seek a certificate
from the Fourth Circuit Court of Appeals under Rule 22 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.
s/Terry L. Wooten
United States District Judge
August 17, 2012
Florence, South Carolina
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