McNeill v. Kendell
Filing
13
ORDER AND OPINION accepting the 10 Report and Recommendation and dismissed without prejudice the 1 Petition for Writ of Habeas Corpus pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Further, the legal standard for the issuance of a certificate of appealability has not been met. Signed by Honorable J. Michelle Childs on 9/7/2021. (mmcd)
1:20-cv-04231-JMC
Date Filed 09/07/21
Entry Number 13
Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Jahmand McNeill, #369401,
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Petitioner,
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v.
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Warden Brian Kendell,
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Respondent.
)
____________________________________)
Civil Action No.: 1:20-cv-04231-JMC
ORDER AND OPINION
Petitioner Jahmand McNeill, proceeding pro se,1 filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. (See ECF No. 1.) In accordance with 28 U.S.C. § 636(b) and Local
Rule 73.02(B)(2)(g) (D.S.C.), the matter was referred to a United States Magistrate Judge for
pretrial handling.
On January 22, 2021, the Magistrate Judge issued a Report and
Recommendation (ECF No. 10) recommending that the court dismiss the action for failure to
prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (Id. at 2.) For the reasons
set forth below, the court ACCEPTS the Magistrate Judge’s Report and Recommendation and
dismisses Petitioner’s Writ of Habeas Corpus (ECF No. 1).
I.
BACKGROUND
On December 7, 2020, Petitioner initiated the instant action in this court against
Respondent by filing a Petition for Writ of Habeas Corpus. (ECF No. 1.) On December 10, 2020,
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“Because he is a pro se litigant, [Petitioner]’s pleadings are construed liberally by the court and
held to a less stringent standard than attorneys’ formal pleadings.” Simpson v. Florence Cty.
Complex Solicitor’s Office, Civil Action No.: 4:19-cv-03095-JMC, 2019 WL 7288801, at *2
(D.S.C. Dec. 30, 2019) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). “This,
however, ‘does not transform the court into an advocate for [Petitioner]; the court is not required
to recognize [Petitioner]’s claims if there is clearly no factual basis supporting them.” Id. (quoting
Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990)).
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the court ordered Petitioner to: (1) either pay the $5.00 filing fee for a habeas corpus action or
complete and return an application to proceed in forma pauperis; and (2) submit a document
providing information as to the timeliness of his Petition. (ECF No. 4 at 1–2.) The court warned
Petitioner that failure to comply with the court’s Order by December 30, 2020, may subject the
case to dismissal. (Id.)
The court filed a second Order on January 4, 2021, again directing Petitioner to: (1) either
pay the $5.00 filing fee for a habeas corpus action or complete and return an application to proceed
in forma pauperis; and (2) submit a document providing information as to the timeliness of his
Petition. (ECF No. 7 at 2.) Petitioner was warned that failure to comply with the court’s Order by
January 19, 2021, “will result in a recommendation that this matter be dismissed for failure to
prosecute.” (Id. at 1, 2–3.) Petitioner did not file a response. (ECF No. 10 at 2.) As a result, on
January 22, 2021, the Magistrate Judge issued a Report recommending that the court dismiss this
case without prejudice for failure to prosecute pursuant to Rule 41. (ECF No. 10 at 2.)
II.
LEGAL STANDARD
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The court reviews de novo only those
portions of a magistrate judge’s report and recommendation to which specific objections are filed,
and reviews those portions which are not objected to for clear error, including those portions to
which only “general and conclusory” objections have been made. See Diamond v. Colonial Life &
Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.
1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may accept, reject, or
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modify, in whole or in part, the recommendation of the magistrate judge or recommit the matter
with instructions. See 28 U.S.C. § 636(b)(1).
III.
A.
ANALYSIS
The Magistrate Judge’s Review
In the Report, the Magistrate Judge first noted that “[i]t is well established that a district
court has authority to dismiss a case for failure to prosecute.” (ECF No. 10 at 2 (citing Link v.
Wabash R.R. Co., 370 U.S. 626, 630 (1962)).) The Magistrate Judge observed that Petitioner failed
to respond to the court’s December 10, 2020 and January 4, 2021 Orders. (Id.) Based on
Petitioner’s failure to respond, the Magistrate Judge concluded that Petitioner does not intend to
pursue the matter and on January 22, 2021, issued a Report recommending that the court dismiss
this case without prejudice for failure to prosecute pursuant to Rule 41. (Id. at 2.)
B.
No Objections by McNeill
The Magistrate Judge advised the parties of their right to file specific written objections to
the Report within fourteen (14) days of the date of service. (ECF No. 10 at 3 (citing 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b)).) However, neither of the parties filed any objections before the
deadline.
In the absence of a timely objection to the Magistrate Judge’s Report, the 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 an advisory committee note on Fed. R.
Civ. P. 72). Furthermore, failure to file specific written objections to the Report results in a party’s
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waiver of the right to appeal from the judgment of the District Court based upon such
recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985).
After conducting a thorough review of the Report and record in this case, the court
concludes that the Report provides an accurate summary of the facts and law and does not contain
any clear error. Therefore, the court ACCEPTS the Magistrate Judge’s Report and
Recommendation (ECF No. 10) and DISMISSES WITHOUT PREJUDICE the Petition for Writ
of Habeas Corpus (ECF No. 1) pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
CERTIFICATE OF APPEALABILITY
The law governing certificates of appealability 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 by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable
judges would find this court’s assessment of his constitutional claim is debatable or
wrong and that any dispositive procedural ruling by the district court is likewise
debatable. See, e.g., 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 the issuance of a certificate of appealability has not been met.
IT IS SO ORDERED.
United States District Judge
September 7, 2021
Columbia, South Carolina
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