Miller v. Cannon

Filing 32

ORDER adopting 11 Report and Recommendation of Magistrate Judge Mary Gordon Baker. The Petition is DISMISSED without prejudice. The court declines to issue a certificate of appealability. Signed by Honorable Timothy M Cain on 1/22/2018.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Keith Miller,
Petitioner,
v.
Sheriff Al Cannon,
Respondent.

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Civil Action 2:17-2752-TMC

ORDER

Petitioner Keith Miller, proceeding pro se, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule
73.02, D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before the
court is the magistrate judge’s Report and Recommendation (“Report”), recommending that the
Petition be summarily dismissed without prejudice. (ECF No. 11). The parties were advised of
their right to file objections. (ECF No. 61 at 19). Petitioner timely filed objections. (ECF No.
16). In his objections, Petitioner merely requested a personal recognizance bond, and he did not
address the Report in any way. Id. Therefore, on December 4, 2017, the court entered an order
informing Petitioner that the court was inclined to adopt the Report, but the court would give
Petitioner an opportunity to amend his habeas petition to cure the deficiencies set forth in the
Report. (ECF No. 23). Petitioner did not file anything in response to this order.
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 27071 (1976). The court need not conduct a de novo review when a party makes only “general and
conclusory objections that do not direct the court to a specific error in the magistrate’s proposed
findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
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Petitioner is a pretrial detainee at the Sheriff Al Cannon Detention Center located in
North Charleston, South Carolina, awaiting trial on several state charges. In the instant Petition
and Petitioner’s Amendment (ECF Nos. 1 and 6), Petitioner states he is seeking a “bond
reduction, P.R. bond, or dismissal of warrant.” (ECF No. 1). However, Petitioner stated no facts
or grounds for relief. Because Petitioner has not been convicted of the pending state charges,
and he is not challenging the execution of a federal sentence, parole decision, calculation of good
time credits, or prison disciplinary action, the magistrate judge determined that this habeas
petition is not appropriate. (Report at 4-5). Additionally, the magistrate judge found that
Petitioner’s claims are unexhausted, premature, and barred by Younger v. Harris, 401 U.S. 37
(1971) (holding that a federal court should not interfere with pending state criminal
proceedings). (Report at 10-11).
Petitioner filed a very brief and general objection in which he states he is seeking a P.R.
bond. (ECF No. 16). As noted above, he did not address the Report in any way. Further,
Petitioner has not filed an amended petition after being given an opportunity to amend his
Petition to address the deficiencies set forth in the Report, and being advised that the court was
inclined to adopt the Report.
The court has thoroughly reviewed the Report, as well as the objections filed by the
Petitioner, and finds no reason to deviate from the Report’s recommended disposition.
Accordingly, the court adopts the Report (ECF No. 11) and the Petition is DISMISSED without
prejudice.
Additionally, a certificate of appealability will not issue to a prisoner seeking habeas
relief absent “a substantial showing of the denial of a constitutional right.”

28 U.S.C. §

2253(c)(2). A prisoner satisfies this standard by demonstrating that reasonable jurists would find
both that his constitutional claims are debatable and that any dispositive procedural rulings by
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the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336
(2003); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the court finds that the
petitioner has failed to make a substantial showing of the denial of a constitutional right.
Accordingly, the court declines to issue a certificate of appealability.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
January 22, 2018
Anderson, South Carolina

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