Barbaris v. Taylor

Filing 25

ORDER RULING ON REPORT AND RECOMMENDATIONS. The court adopts and incorporates the Report and Recommendation by reference in this Order. Signed by Honorable Cameron McGowan Currie on 08/12/2010. (dsto, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION Gerald Patrick Barbaris, #316683, ) ) Petitioner, ) ) v. ) ) Edsel Taylor, Warden McDougall Corr. ) Inst., ) ) Respondent. ) ___________________________________ ) C/A NO. 4:10-830-CMC-TER OPINION and ORDER

This matter is before the court on Petitioner's 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 Thomas E. Rogers, III, for pre-trial proceedings and a Report and Recommendation ("Report"). On August 4, 2010, the Magistrate Judge issued a Report recommending that because this court lacks subject matter jurisdiction over this petition, this matter be dismissed without prejudice and without issuance and service of process upon Respondent. The Magistrate Judge advised Petitioner of the procedures and requirements for filing objections to the Report and the serious consequences if he failed to do so. Petitioner filed objections to the Report on August 10, 2010. 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

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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 reviewing the record of this matter, 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. Petitioner argues in his objections that he should be allowed to proceed with his case as "[m]any civil cases arise from criminal cases and the federal courts have heard these cases." Obj. at 3 (Dkt. # 23, filed Aug. 10, 2010). However, this court has no jurisdiction over a matter such as this decided in a South Carolina family court. Contrary to Plaintiff's assertion ("[s]ince all the appellate courts at the state level have denied the petition the next step becomes the federal court system," Obj. at 4), this court does not operate in an appellate capacity over decisions made in the South Carolina courts. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476-82 (1983) (federal district court lacks authority to review final determinations of state or local courts; such review can only be conducted by the Supreme Court of the United States under 28 U.S.C. § 1257); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) (same). This petition 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. 2

(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 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 August 12, 2010
C:\Documents and Settings\des48\Local Settings\Temp\notesFCBCEE\10-830 Barbaris v. Taylor adopt rr dism wo requiring Resp to respond den cert app.wpd

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