Wilmore v. South Carolina, State of et al

Filing 19

ORDER adopting 17 Report and Recommendation of Magistrate Judge Mary Gordon Baker. It is ORDERED that Petitioner's § 2254 petition is DISMISSED without prejudice and without requiring Respondent to file a return. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Honorable R Bryan Harwell on 3/2/2015.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Terry M. Wilmore, #217739 a/k/a
Terry Michael Wilmore,
Petitioner,
v.
Warden, Perry Correctional
Institution,
Respondent.

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Civil Action No.: 2:14-cv-4190-RBH

ORDER

Petitioner Terry M. Wilmore, #217739 a/k/a Terry Michael Wilmore (“Petitioner”),
proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on
October 28, 2014. See Pet., ECF No. 1. The matter is before the Court for review of the Report and
Recommendation of United States Magistrate Judge Mary Gordon Baker, made in accordance with
28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02 for the District of South Carolina. See R & R, ECF
No. 17. In the Report and Recommendation, the Magistrate Judge recommends the Court dismiss
the Petitioner’s § 2254 petition without prejudice and without requiring Respondent to file a return.
See id. at 6. The Magistrate Judge also recommends that a certificate of appealability be denied.
See id.
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 is charged with making a
de novo determination of those portions of the Report and Recommendation 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 with instructions. See 28 U.S.C.
§ 636(b)(1).
Neither party has filed objections to the Report and Recommendation. In the absence of
objections to the Report and Recommendation of the Magistrate Judge, this Court is not required to
give any explanation for adopting the recommendations. See Camby v. Davis, 718 F.2d 198, 199
(4th Cir. 1983). The Court reviews only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005) (stating that “in the
absence of a timely filed objection, a district court need not conduct 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’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Furthermore, 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). When the district court denies relief on
the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that
the court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529
U.S. 473, 484 (2000); see Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003). When the district
court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the petition states a debatable claim of the denial of a
constitutional right. Slack, 529 U.S. at 484–85. In the instant matter, the Court concludes that
Petitioner has failed to make the requisite showing of “the denial of a constitutional right.”
After a thorough review of the record in this case, the Court finds no clear error.
Accordingly, the Report and Recommendation of the Magistrate Judge is adopted and incorporated
by reference. Therefore, it is ORDERED that Petitioner’s § 2254 petition is DISMISSED without
prejudice and without requiring Respondent to file a return.

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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).
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
March 2, 2015

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