Insixengmay v. Mosley
ORDER adopting and incorporating 11 Report and Recommendation and dismissing petition without prejudice and without requiring Respondent to file an answer. The Court denied a certificate of appealability. Signed by Honorable R Bryan Harwell on 1/19/2017. (mwal)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Warden Mrs. Mosley,
Civil Action No.: 1:16-cv-03587-RBH
Petitioner Veovanh Insixengmay, a federal prisoner proceeding pro se, has filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See ECF No. 1. The matter is before the Court
for review of the Report and Recommendation (R & R) of United States Magistrate Judge Shiva V.
Hodges.1 See R & R, ECF No. 11. The Magistrate Judge recommends that the Court summarily
dismiss Petitioner’s § 2241 petition without prejudice and without requiring Respondent to file an
answer. R & R at 1, 4.
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, 270-71 (1976). The Court must conduct a de novo review of those
portions of the R & R to which specific objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions.
28 U.S.C. § 636(b)(1).
Neither party has filed objections to the R & R, and the time for doing so has expired. In the
absence of objections to the R & R, the Court is not required to give any explanation for adopting the
This matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule
73.02(B)(2)(c) for the District of South Carolina.
Magistrate Judge’s recommendations. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The
Court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life & Acc.
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 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)).
Furthermore, a certificate of appealability will not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Fourth Circuit has held that a district
court’s order denying relief on a petition pursuant to 28 U.S.C. § 2241 is not appealable unless a circuit
justice or judge issues a certificate of appealability. See, e.g., Garvin v. Wright, 583 F. App’x 287, 287
(4th Cir. 2014) (citing 28 U.S.C. § 2253(c)(1)(A)). When the district court denies relief on the merits,
a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the court’s
assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies
relief on procedural grounds, the prisoner must demonstrate (1) the dispositive procedural ruling is
debatable and (2) the petition states a debatable claim of the denial of a constitutional right. Slack, 529
U.S. at 484-85. In the instant case, the Court concludes that Petitioner has failed to make the requisite
showing of “the denial of a constitutional right.”
After a thorough review of the record in this case, the Court finds no clear error and therefore
adopts and incorporates by reference the Magistrate Judge’s R & R [ECF No. 11]. Accordingly, the
Court DISMISSES Petitioner’s § 2241 petition without prejudice and without requiring Respondent
to file an answer. The Court DENIES a certificate of appealability because Petitioner has failed to
make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
Florence, South Carolina
January 19, 2017
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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