Brown v. SCDC et al
Filing
32
OPINION AND ORDER adopting 29 Report and Recommendation of Magistrate Judge Mary Gordon Baker. It is therefore ORDERED that this action is DISMISSED without prejudice and without requiring respondent to file a return. A certificate of appealability is denied. Signed by Honorable Bruce Howe Hendricks on 6/22/2015.(ssam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Mario Brown,
) Civil Action No.: 2:14-4034-BHH
)
Petitioner, )
)
v.
)
OPINION AND ORDER
)
Warden Bernard McKie,
)
Respondent. )
__________________________________ )
The petitioner Mario Brown (“the petitioner”), proceeding pro se, filed this habeas
relief action pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In accordance with 28 U.S.C.
§ 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this matter was referred to
United States Magistrate Judge Mary Gordon Baker for pre-trial proceedings and a Report
and Recommendation (“Report”).
This matter is before the court for review of the Report issued by United States
Magistrate Judge Baker on May 7, 2015. In her Report, the Magistrate Judge recommends
that the petition be dismissed without prejudice and without requiring the respondent to file
a return. (ECF No. 29.) The Magistrate Judge advised the petitioner of the procedures
and requirements for filing objections to the Report and the serious consequences if he
failed to do so. (ECF No. 29 at 9.) The petitioner has not filed objections, and the time for
doing so expired on May 26, 2015.
The magistrate judge makes only a recommendation to the district 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, 96 S.Ct. 549,
46 L.Ed.2d 483 (1976). The court is charged with making a de novo determination of any
portion of the Report and Recommendation 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 and
Recommendation 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 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 a careful review of the record, the applicable law, and the Report and
Recommendation of the Magistrate Judge, the court finds no clear error. Accordingly, the
court adopts and incorporates the Report and Recommendation (ECF No. 29) by reference
into this order. It is therefore ORDERED that this action is DISMISSED without prejudice
and without requiring respondent to file a return.
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
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(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/Bruce Howe Hendricks
United States District Judge
June 22, 2015
Greenville, South Carolina
*****
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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