Demmirio v. McFadden

Filing 22

ORDER adopting 18 Report and Recommendation of Magistrate Judge Bruce Howe Hendricks, dismissing action without prejudice and without requiring service on and a return from Respondent. Plaintiff's 21 Motion for Production of Documents is denied. A certificate of appealability is denied. Signed by Honorable Cameron McGowan Currie on 6/4/13.(hhil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Edmond D. Davis, a/k/a Hamid Demmirio, )
#115800,
)
Petitioner,
)
)
v.
)
)
J. McFadden, Warden,
)
)
Respondent.
)
___________________________________ )

C/A NO. 2:13-719-CMC-BHH

OPINION and ORDER

This matter is before the court on Petitioner’s pro se application for writ of habeas corpus,
filed in this court pursuant to 28 U.S.C. § 2254.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(c), DSC, this matter
was referred to United States Magistrate Judge Bruce Howe Hendricks for pre-trial proceedings and
a Report and Recommendation (“Report”). On May 9, 2013, the Magistrate Judge issued a Report
recommending that this petition be dismissed without prejudice as untimely filed. The Magistrate
Judge advised Petitioner of the procedures and requirements for filing objections to the Report and
the serious consequences if he failed to do so. Petitioner has filed no objections and the time for
doing so has expired.
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.
See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection is
made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. §
636(b). The court reviews the Report only for clear error in the absence of an objection. 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
1

must only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.”) (citation omitted).
After reviewing the record of this matter, the applicable law, and the Report and
Recommendation of the Magistrate Judge, the court agrees with the conclusions of the Magistrate
Judge. Accordingly, the court adopts and incorporates the Report and Recommendation by reference
in this Order.
This matter is dismissed without prejudice and without requiring service on and a return from
Respondent.1
CERTIFICATE OF APPEALABILITY
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 has not been
met. Therefore, a certificate of appealability is denied.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
June 4, 2013

1

Petitioner’s motion for production of records (ECF No. 21) is denied.
2