Frazier v. Padula

Filing 55

ORDER RULING ON REPORT AND RECOMMENDATION. The Court agrees with theconclusions of the Magistrate Judge. Accordingly, the Court adopts and incorporates the Report 45 by reference in this Order. This petition is dismissed without prejudice and without requiring Respondents to file a return. A certificate of appealability is denied. Signed by Honorable Mary G Lewis on 12/12/2012. (dsto, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
) Civil Action No.: 4:12-112-MGL
)
Petitioner, )
)
vs.
)
OPINION AND ORDER
)
Warden Padula,
)
)
Respondent. )
_______________________________________ )
Willie Bernard Frazier, #219272,

This matter is before the Court upon Petitioner Willie Bernard Frazier’s pro se application
for writ of habeas corpus, filed in this court pursuant to 28 U.S.C. § 2254. (ECF No.1.)
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02, this matter was
referred to United States Magistrate Thomas E. Rogers, III for pre-trial proceedings and a Report
and Recommendation (“Report”). On July 11, 2012, the Magistrate Judge issued a Report. In the
Report, the Magistrate Judge noted that Petitioner has previously filed a petition for a writ of habeas
corpus in this Court which the Court dismissed as untimely. (ECF No.45 at 1 citing Frazier v.
Stevens, 4:09-302-JFA-TER). Ultimately, the Magistrate Judge recommended that the Court
summarily dismiss the instant petition as untimely as a successive petition and without requiring
Respondent to file a return because Petitioner has not presented an order from the Fourth Circuit
Court of Appeals authorizing the consideration of a successive petition. See, e.g., Rule 9 of the
Section 2254 Rules. Petitioner filed objections to the Report on July 23, 2012. (ECF No. 50.)
The Magistrate Judge only makes a recommendation to the court. It has no presumptive
weight, and the responsibility for making a final determination remains with the court. Mathews v.
Weber, 423 U.S. 261, 270–71 (1976). Parties are allowed to make a written objection to a Magistrate
Judge’s report within fourteen days after being served a copy of the Report. 28 U.S.C. § 636(b)(1).

From the objections, the court reviews de novo those portions of the Report that have been
specifically objected to, and the court is allowed to accept, reject, or modify the Report in whole or
in part. Id.
Having reviewed the entire record, including a review of the Petitioner's previous section
2254 petition, the Report in this case, and the Petitioner's objections, the Court agrees with the
conclusions of the Magistrate Judge. Accordingly, the Court adopts and incorporates the Report by
reference in this Order. Petitions’s objections contain no argument to overcome the deficiencies of
the petition.
This petition is dismissed without prejudice and without requiring Respondents to file a
return.
IT IS SO ORDERED.
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).1

/s/ Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
December 12, 2012

1

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 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
defendant has failed to make “a substantial showing of the denial of a constitutional right.”
2