Gay v. McCall

Filing 16

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing this action without prejudice and denying a certificate of appealability, for 12 Report and Recommendation, Signed by Honorable Cameron McGowan Currie on June 28, 2013. (kbos)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Donald W. Gay,

#244300,

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Petitioner,
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v.
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Warden McCall,
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Respondent.
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___________________________________ )

C/A NO. 3:13-937-CMC-JRM

OPINION and ORDER

This matter is before the court on the pro se application for writ of habeas corpus, filed in
this court pursuant to 28 U.S.C. § 2254.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(c), DSC, this
matter was referred to United States Magistrate Judge Joseph R. McCrorey for pre-trial proceedings
and a Report and Recommendation (“Report”). On June 12, 2013, the Magistrate Judge issued a
Report recommending that this matter be dismissed without prejudice as this court is without
jurisdiction to entertain it. Petitioner filed “objections” to the Report on June 25, 2013.
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.
See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection is
made. The court may accept, reject, or modify, in whole or in part, the recommendation made by
the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b).
After conducting a de novo review of the record as to the objections made, and after
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considering the applicable law, the Report and Recommendation of the Magistrate Judge, and
Petitioner’s objections, the court agrees with the conclusions of the Magistrate Judge. Accordingly,
the court adopts and incorporates the Report and Recommendation by reference in this Order.
Title 28, Section 2244(b)(3) places specific restrictions on second or successive petitions
under 28 U.S.C. § 2254. Prior to filing a second or successive petition under § 2254, Petitioner must
obtain certification by a panel of the Fourth Circuit Court of Appeals allowing him to file a second
or successive petition. As provided in 28 U.S.C. § 2244, “[b]efore a second or successive
application permitted by this section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to consider the application.”
28 U.S.C. § 2244(b)(3)(A). This he has not done.1
This petition is successive in nature. As this court is without jurisdiction to consider it, it is
dismissed without prejudice and without issuance and service of process upon Respondent.
CERTIFICATE OF APPEALABILITY
The governing law 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

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Petitioner seeks information and/or “forms” for seeking permission from the appellate court to file
a second or successive petition and a stay of this matter pending the outcome of his petitioning that
court. Obj. at 1. The court is unaware of there being a specific form that Defendant must present
to the appellate court. Additionally, Petitioner’s request for a “stay” of this matter pending the
outcome of any action by the appellate court is denied.
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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. Therefore, a certificate of appealability is denied.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
June 28, 2013

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