Byrd v. Atkinson

Filing 15

ORDER adopting 11 Report and Recommendation. It is ordered that the habeas petition is dismissed without prejudice. The court declines to issue a certificate of appealability. Signed by Honorable Timothy M Cain on 6/9/2014.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Jimmie Lee Byrd,
Petitioner,
v.
Kenny Atkinson,
Respondent.

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Civil Action No. 1:14-959-TMC

ORDER

The petitioner, an inmate proceeding pro se, seeks habeas corpus relief pursuant to 28
U.S.C. § 2241. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02, DSC,
this matter was referred to a magistrate judge for pretrial handling. Before the court is the
magistrate judge’s Report and Recommendation (“Report”), recommending that the court
dismiss the petition without prejudice. (ECF No. 11.) The Report also advised the petitioner of
his right to file objections, however, the petitioner has not objected and the time to do so has now
run.
The Report 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). In the absence of
objections to the Report, this court is not required to provide an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “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.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).

After a thorough review of the record in this case, the court finds no clear error and,
therefore, adopts the Report and incorporates it herein by reference. It is therefore ORDERED
that the habeas petition is DISMISSED without prejudice.
In addition, a certificate of appealability will not issue to a prisoner seeking habeas relief
absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A
prisoner satisfies this standard by demonstrating that reasonable jurists would find both that his
constitutional claims are debatable and that any dispositive procedural rulings by the district
court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Rose v.
Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the court finds that the petitioner has failed
to make a substantial showing of the denial of a constitutional right. Accordingly, the court
declines to issue a certificate of appealability.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
June 9, 2014
Anderson, South Carolina