Dukes v. South Carolina, State of
ORDER RULING ON REPORT AND RECOMMENDATIONS. The court adopts the Magistrate Judges Report and Recommendation 27 and incorporates it herein. It is therefore ORDERED that the Petition in the above-captioned case is DISMISSED without prejudice and without requiring Respondent to file an answer or return. Signed by Honorable Timothy M Cain on 11/08/2011. (dsto, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Henry Jermaine Dukes, aka Henry J. Dukes )
Bernard McKie, Warden of Kirkland
C/A No. 4:11-2100-TMC
Henry Jermaine Dukes (“Petitioner”), a pro se prisoner, filed this habeas Petition
pursuant to 28 U.S.C. § 2254. The Magistrate Judge’s Report and Recommendation (Dkt. #
27), filed on October 13, 2011, recommends that the court dismiss the Petition without prejudice
and without requiring the Respondent to file an answer or return, deny a Certificate of
Appealability, and deny Petitioner’s Motion for Service of Petition. (Dkt. # 24). The Report and
Recommendation sets forth in detail the relevant facts and legal standards on this matter, and the
court incorporates the Magistrate Judge’s Report herein without a recitation.
The Magistrate Judge’s Report and Recommendation is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to this court. The recommendation has no
presumptive weight. The responsibility to make a final determination remains with this court.
See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de
novo determination of those portions of the Report and Recommendation to which specific
objections are made, and the court may accept, reject, or modify, in whole or in part, the
Magistrate Judge’s recommendation or recommit the matter with instructions. See 28 U.S.C. §
Petitioner was advised of his right to file objections to the Report and Recommendation
(Dkt. # 27 at 6). However, Petitioner filed no objections to the Report and Recommendation.
In the absence of objections to the Magistrate Judge’s Report and Recommendation, this
court is not required to provide an explanation for adopting the recommendation. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in the absence of a timely filed objection, a
district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is
no clear error on the face of the record in order to accept the recommendation.’” Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72
advisory committee’s note). Furthermore, failure to file specific written objections to the Report
and Recommendation results in a party’s waiver of the right to appeal from the judgment of the
District Court based upon such recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474
U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727
F.2d 91 (4th Cir. 1984).
After a thorough review of the Report and Recommendation and the record in this case,
the court adopts the Magistrate Judge’s Report and Recommendation (Dkt. # 27) and
incorporates it herein. It is therefore ORDERED that the Petition in the above-captioned case
is DISMISSED without prejudice and without requiring Respondent to file an answer or return.
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). 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 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 the instant matter, the court finds that Petitioner has failed to make “a substantial showing of
the denial of a constitutional right.” Accordingly, the court declines to issue a certificate of
IT IS SO ORDERED.
s/ Timothy M. Cain
United States District Judge
Greenville, South Carolina
November 8, 2011
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