Daniels v. McCall

Filing 10

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing this action without prejudice and without issuance and service of process. FURTHER ORDERED that a certificate of appealability is denied, for 7 Report and Recommendation, Signed by Honorable Joseph F Anderson, Jr on August 1, 2013. (kbos)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Herman Joseph Daniels,

#302463,

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Petitioner,
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v.
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Warden Michael McCall,
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Respondent.
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______________________________________ )

C/A No. 3:13-864-JFA-JRM

ORDER

The pro se petitioner, Herman Joseph Daniels III, is an inmate with the South Carolina
Department of Corrections. He brings this action pursuant to 28 U.S.C. § 2254 challenging
his 2004 state court convictions for voluntary manslaughter and attempted arson.
The Magistrate Judge assigned to this action1 has prepared a thorough Report and
Recommendation and opines that this action should be dismissed because the petitioner has
not received permission from the Fourth Circuit Court of Appeals to file a successive § 2254
petition. The Magistrate Judge further notes that the petitioner has previously raised a
challenge to his state conviction in Daniels v. Padula, C/A No. 3:11-1445-JFA-JRM (D.S.C.
Aug. 23, 2012), wherein the court considered and denied that petition as untimely under the
Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). The Report sets forth
in detail the relevant facts and standards of law on this matter, and the court incorporates
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The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews
v. Weber, 423 U.S. 261 (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 to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).

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such without a recitation.
The petitioner was advised of his right to file objections to the Report and
Recommendation, however, he has not done so and the deadline has now expired. In the
absence of specific objections to the Report of the Magistrate Judge, this court is not required
to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d
198, 199 (4th Cir. 1983).
The Magistrate Judge is correct in his opinion that the claims raised in this petition,
and construed under § 2254, are successive. As the petitioner has not received permission
from the Fourth Circuit Court of Appeals to file a successive § 2254 petition, this court is
without authority to entertain it. 28 U.S.C. § 2244 and United States v. Winestock, 340 F.3d
200, 205 (4th Cir. 2003) (“In the absence of pre-filing authorization, the district court lacks
jurisdiction to consider an application containing abusive or repetitive claims.”)
After a careful review of the record, the applicable law, and Report and
Recommendation, the court finds the Magistrate Judge’s recommendation proper and it is
incorporated herein by reference. Accordingly, this action is dismissed without prejudice
and without issuance and service of process..
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).2
2

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) (West 2009). A prisoner satisfies this standard by demonstrating that

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IT IS SO ORDERED.

Joseph F. Anderson, Jr.
United States District Judge

August 1, 2013
Columbia, South Carolina

reasonable jurists would find both that his constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or wrong. 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 the instant matter, the court finds that the petitioner has failed to make “a substantial showing of the denial
of a constitutional right.”

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