Burress v. Cruz
ORDER adopting 19 Report and Recommendation of Magistrate Judge Mary Gordon Baker. It is therefore ORDERED that Petitioner's Petition for Writ of Habeas Corpus (ECF No. 1 ) is DISMISSED without prejudice and without requiring Respondent to file a return. In this case, the legal standard for the issuance of a certificate of appealability has not been met. Signed by Honorable J Michelle Childs on 2/24/2015. (ssam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Roger D. Burress,
Ms. M. Cruz,
Civil Action No: 2:14-cv-04204-JMC
Petitioner, proceeding pro se, brought this action seeking relief pursuant to 28 U.S.C. § 2241.
This matter is before the court for review of the magistrate judge's Report and Recommendation
(“Report”), (ECF No. 19), filed on January 29, 2015, recommending Petitioner's Writ of Habeas
Corpus (ECF No. 1) be dismissed without prejudice and without requiring the respondent to file a
return. The Report sets forth in detail the relevant facts and legal standards on this matter, and the
court incorporates the magistrate judge’s recommendation herein without a recitation.
The magistrate judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02 for the District of South Carolina.
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 objections are made, and the court may accept, reject, or
modify, in whole or in part, the magistrate judge’s recommendation or recommit the matter with
instructions. See 28 U.S.C. § 636(b)(1).
Petitioner was advised of his right to file objections to the Report (ECF No. 19 at 6).
However, Petitioner filed no objections to the Report and Recommendation.
In the absence of objections to the magistrate judge’s Report and Recommendation, this court
is not required to provide an explanation for adopting the recommendation. See Camby v. Davis,
718 F.2d 198, 199 (4th Cir. 1983). Rather, “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.’” Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Furthermore, failure to file specific written objections to the Report and Recommendation results
in a party’s waiver of the right to appeal from the judgment of the District Court based upon such
recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins,
766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
Therefore, after a thorough and careful review of the Report and the record in this case, the
court finds the Report provides an accurate summary of the facts and law. The court ADOPTS the
magistrate judge’s Report and Recommendation (ECF No. 19). It is therefore ORDERED that
Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 1) is DISMISSED without prejudice and
without requiring Respondent to file a return.
Certificate of Appealability
The law governing certificates of appealability 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.
IT IS SO ORDERED.
United States District Judge
February 24, 2015
Columbia, South Carolina
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