Fashaw v. Warden MacDougall Correctional Institution

Filing 17

ORDER RULING ON 10 REPORT AND RECOMMENDATION For the foregoing reasons, the Court overrules Plaintiff's objections to the R&R and adopts the Magistrate Judge's recommendation that this action be dismissed without prejudice. Signed by Honorable Patrick Michael Duffy on 10/10/2017. (egra, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Marcus Fashaw, #293833,
Petitioner,
v.
Warden, MacDougall Correctional
Institution,
Respondent.

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C.A. No.: 2:17-cv-1330-PMD-MGB
ORDER

This matter is before the Court on Petitioner’s objections to United States Magistrate Judge
Mary Gordon Baker’s Report and Recommendation (“R & R”) (ECF Nos. 13 & 10). Magistrate
Judge Baker recommends that this action be dismissed without prejudice because Petitioner’s 28
U.S.C. § 2254 petition is an unauthorized successive petition. Petitioner filed a number of
objections, but only one relates to the reason for the Magistrate Judge’s recommendation of
dismissal, namely his argument that this Court does in fact have jurisdiction over his petition in
spite of the fact that it is successive. Petitioner is mistaken. “In the absence of pre-filing
authorization from the court of appeals, the district court is without jurisdiction to consider a
second or successive application.” Hines v. South Carolina, No. 6:16-cv-3386-HMH-KFM, 2017
WL 35448, at *2 (D.S.C. Jan. 4, 2017) (citing United State v. Winestock, 340 F.3d 200, 205 (4th
Cir. 2003)). Because Petitioner did not receive pre-filing authorization from the Fourth Circuit,
this Court does lack jurisdiction over his petition.

For the foregoing reasons, the Court OVERRULES Plaintiff’s objections to the R & R
and ADOPTS the Magistrate Judge’s recommendation that this action be dismissed without
prejudice. 1
AND IT IS SO ORDERED.

October 10, 2017
Charleston, South Carolina

1.
The Court declines to issue a certificate of appealability. Petitioner has not made a substantial showing of a
denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003) (in
order to satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000) (holding
that when relief is denied on procedural grounds, a petitioner must establish both that the correctness of the dispositive
procedural ruling is debatable, and that the petition states a debatably valid claim of the denial of a constitutional
right).