Llovera v. Florida, State of

Filing 20

ORDER RULING ON REPORT AND RECOMMENDATION. The court adopts the Magistrate Judges Report and Recommendation (ECF No. 15 ) and incorporates it herein. It is therefore ORDERED that this action is DISMISSED without prejudice and without service on the Respondent. The court declines to issue a certificate of appealability. Signed by Honorable Timothy M Cain on 09/30/2013. (dsto, )

1IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Rafael Alberto Llovera,
aka Rafael Alberto Llovera-Linares,

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Petitioner,
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v.
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State of Florida,
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Respondent.
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___________________________________ )

C/A No. 4:13-859-TMC
ORDER

Petitioner, proceeding pro se, filed this Petition for a Writ of Habeas Corpus seeking to
vacate a conviction imposed by the State of Florida in 2007. In accordance with 28 U.S.C. §
636(b) and Local Rule 73.02, D.S.C., all pre-trial proceedings were referred to a Magistrate Judge.
On December 13, 2011, Magistrate Judge Thomas E. Rogers, III, issued a Report and
Recommendation ("Report") recommending the Petition be dismissed without service on
Respondent. (ECF No. 15). 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. The 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. § 636(b)(1).
Petitioner was advised of his right to file objections to the Report and Recommendation
(ECF No. 15 at 12). 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 (ECF No. 15) and incorporates it
herein. It is therefore ORDERED that this action is DISMISSED without prejudice and without
service on the Respondent.
Certificate of Appealability
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 appealability.
IT IS SO ORDERED.
s/ Timothy M. Cain
United States District Judge
Anderson, South Carolina
September 30, 2013