Smart v. Supreme Court of South Carolina

Filing 16

ORDER accepting 5 Report and Recommendation of Magistrate Judge Mary Gordon Baker. The petition (ECF No. 1 ) is DISMISSED without prejudice. The Court concludes that it is not appropriate to issue a certificate of appealability as to the issues raised herein. Signed by Chief Judge Terry L Wooten on 3/17/2017.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

Robert Dale Smart,

)
)
Petitioner,
)
)
v.
)
)
Supreme Court of South Carolina,
)
)
Respondent.
)
_____________________________________________ )

C/A No.: 2:15-cv-04155-TLW

ORDER

Petitioner Robert Dale Smart, proceeding pro se, filed this petition pursuant to 28 U.S.C.
§ 2254 on October 7, 2015. (ECF No. 1). This matter now comes before this Court for review of
the Report and Recommendation (“the Report”) filed on December 14, 2015, by United States
Magistrate Judge Mary Gordon Baker, to whom this case was previously assigned pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), (D.S.C.). In the Report, the Magistrate
Judge recommends that the Court dismiss the petition without prejudice. (ECF No. 5). Petitioner
filed Objections to the Report on January 4, 2016. (ECF No. 9). This matter is now ripe for
disposition.
The Court is charged with conducting a de novo review of any portion of the Magistrate
Judge’s Report and Recommendation to which a specific objection is registered, and may accept,
reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. §
636. In conducting its review, the Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections.... The Court is not bound by the recommendation
of the magistrate judge but, instead, retains responsibility for the final
determination. The Court is required to make a de novo determination of those

portions of the report or specified findings or recommendation as to which an
objection is made. However, the Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of the magistrate judge as to
those portions of the report and recommendation to which no objections are
addressed. While the level of scrutiny entailed by the Court's review of the Report
thus depends on whether or not objections have been filed, in either case the Court
is free, after review, to accept, reject, or modify any of the magistrate judge's
findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citations
omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report
and the Objections. After careful consideration, IT IS ORDERED that the Magistrate Judge’s
Report (ECF No. 5) is ACCEPTED, and the Petitioner’s Objections (ECF No. 9) are
OVERRULED. For the reasons stated in the Report, the petition (ECF No. 1) is DISMISSED
without prejudice.
The Court has reviewed this petition in accordance with Rule 11 of the Rules Governing
Section 2254 Proceedings. The Court concludes that it is not appropriate to issue a certificate of
appealability as to the issues raised herein. Petitioner is advised that he may seek a certificate from
the Fourth Circuit Court of Appeals under Rule 22 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.

s/Terry L. Wooten____________
Chief United States District Judge
March 17, 2017
Columbia, South Carolina