Hightower v. Warden, McCormick Correctional Institution

Filing 28

ORDER denying 18 Motion to Set Aside Judgment re 12 Order Ruling on Report and Recommendations ; denying 19 Motion for Certificate of Appealability; denying 21 Motion to Appoint Counsel ; denying 21 Motion for Hearing; denying 22 Motion to Amend Petition for Habeas Corpus. Signed by Honorable Cameron McGowan Currie on 9/29/2008.(ssan, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION ) ) Petitioner, ) ) v. ) ) Warden, McCormick Correctional ) Institution, ) ) Respondent. ) ___________________________________ ) David Hightower, #256047, C/A NO. 2:07-63-CMC-RSC ORDER

This matter is before the court on motions filed by Petitioner with this court on August 14, 2008. Petitioner's motion to set aside the judgment, Dkt. # 18, is the same as a previously-denied motion. See Dkt. # 16. It is, therefore, denied. Petitioner has also filed a motion for certificate of appealability. Dkt. # 19. The governing law 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 jurists would find this court's assessment of his constitutional claims is 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). In this case, the legal standard for the issuance of a certificate of appealability

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has not been met. Petitioner's motion, therefore, is denied. Petitioner has also submitted objections to the Report and Recommendation of the Magistrate Judge and a motion for appointment of counsel. Dkts. # 20, 21. These objections are untimely and the court denies Petitioner's motion for appointment of counsel. Petitioner's last "motion" appears to be an effort to amend his petition for writ of habeas corpus. To the extent Petitioner seeks to amend his previously-filed petition, this matter is closed and therefore Petitioner's "motion" is denied. IT IS SO ORDERED. s/ Cameron McGowan Currie CAMERON MCGOWAN CURRIE UNITED STATES DISTRICT JUDGE Columbia, South Carolina September 29, 2008

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