Burkes v. McFadden

Filing 27

ORDER adopting 24 Report and Recommendation; overruling Petitioner's objections; and dismissing this action without prejudice. A certificate of appealability is denied. Signed by Honorable Bruce Howe Hendricks on 12/6/2016. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Christopher Lovett Burkes, #272240,

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Petitioner,
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v.
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Warden Joseph McFadden,
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Respondent.
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Civil Action No. 1:16-2532-BHH
ORDER

This matter is before the Court upon Petitioner Christopher Lovett Burkes’ pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28
U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), the matter was referred
to a United States Magistrate Judge for initial review. On November 15, 2016, Magistrate
Judge Shiva V. Hodges filed a Report and Recommendation (“Report”), outlining the issues
and recommending that the Court dismiss the instant petition because it is a successive
petition and because Petitioner has not received pre-filing authorization from the Fourth
Circuit Court of Appeals to file the petition. See 18 U.S.C. § 2244(b)(3) (requiring a
petitioner to file with the appropriate court of appeals a motion for leave to file a second or
successive habeas petition in the district court). As the Magistrate Judge noted, in 2015,
Petitioner filed a prior habeas corpus petition challenging the same underlying convictions,
and the Court considered the petition on the merits and granted summary judgment in favor
of Respondent on February 2, 2016. See Burkes v. McFadden, No. 1:15-1332-BHH
(“Burkes I”).
Attached to the R&R was a notice advising Petitioner of his right to file written,
specific objections to the Report within fourteen days of receiving a copy. On December

5, 2016, rather than filing specific objections to the Magistrate Judge’s Report, Petitioner
simply resubmitted the response that he filed to Respondent’s motion for summary
judgment in Burkes I. (Cf. ECF No. 26 in No. 1:16-2532-BHH and ECF No. 36 in No. 1:151332-BHH.)
The Magistrate Judge makes only a recommendation to the Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court
is charged with making a de novo determination only of those portions of the Report to
which specific objections are made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of specific
objections, the Court reviews the matter only for clear error. See Diamond v. Colonial Life
& Accident 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 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.’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Here, after review, the Court finds no clear error and agrees with the Magistrate
Judge that the instant petition is successive. Moreover, because it does not appear that
Petitioner has obtained the necessary pre-filing authorization from the Fourth Circuit to file
this petition, the Court lacks jurisdiction to consider it.
Accordingly, it is hereby ordered that the Magistrate Judge’s Report (ECF No. 24)
is adopted and incorporated herein; Petitioner’s objections (ECF No. 26) are overruled; and
this action is dismissed without requiring Respondent to file an answer.
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IT IS SO ORDERED.

/s/Bruce Howe Hendricks
United States District Judge
December 6, 2016
Charleston, South Carolina
CERTIFICATE OF APPEALABILITY
The governing law provides:
(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 by paragraph (2).
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). Here, the Court finds that the legal
standard for the issuance of a certificate of appealability has not been met. Therefore, a
certificate of appealability is denied.

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