Stoudemire v. McCabe

Filing 16

ORDER adopting 12 Report and Recommendations of Magistrate Judge Bruce Howe Hendricks dismissing action without prejudice as and without issuance and service of process. A certificate of appealability is denied because the petitioner has failed to make a substantial showing of the denial of a constitutional right. Signed by Honorable Joseph F Anderson, Jr on 3/29/12.(hhil, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Hazel Stoudemire,
Petitioner,
vs.
Warden McCabe,
Respondent.
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C/A No. 2:12-111-JFA-BHH

ORDER

The pro se petitioner, Hazel Stoudemire, brings this action pursuant to 28 U.S.C. §
2254 challenging his 2000 state court conviction for murder and his life sentence.
The Magistrate Judge assigned to this action1 has prepared a Report and
Recommendation wherein she opines that the petition is successive and the petitioner has not
received permission from the Fourth Circuit Court of Appeals to file a successive § 2254
petition. The Magistrate Judge further notes that the petitioner has raised this challenge to
his state conviction before in Stoudemire v. Padula, C/A No. 8:07-3272-HFF, wherein the
court considered the petition on the merits and granted summary judgment to the respondent.
The Report sets forth in detail the relevant facts and standards of law on this matter, and the
court incorporates such without a recitation.

1

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02. The Magistrate Judge makes only a recommendation to this 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 of those
portions of the Report to which specific objection is 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).

1

The petitioner was advised of his right to file objections to the Report and
Recommendation, which was entered on the docket on February 15, 2012. Petitioner’s
response to the Report was merely duplicative of the arguments he raised in his original
petition. As such, they are overruled. In the absence of specific objections to the Report of
the Magistrate Judge, this court is not required to give any explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
As the petitioner has not received permission from the Fourth Circuit Court of
Appeals to file a successive § 2254 petition, this court is without authority to entertain it. 28
U.S.C. § 2244 and United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003) (“In the
absence of pre-filing authorization, the district court lacks jurisdiction to consider an
application containing abusive or repetitive claims.”)
After a careful review of the record, the applicable law, the Report and
Recommendation, the court finds the Magistrate Judge’s recommendation proper and
incorporated herein by reference. Accordingly, this action is dismissed without prejudice as
and without issuance and service of process.
IT IS FURTHER ORDERED that a certificate of appealability is denied because the
petitioner has failed to make “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).2
2

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) (West 2009). 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); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th
Cir.2001). In the instant matter, the court finds that the petitioner has failed to make “a substantial showing
of the denial of a constitutional right.”

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IT IS SO ORDERED.

Joseph F. Anderson, Jr.
United States District Judge

March 29, 2012
Columbia, South Carolina

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