Miles v. SCDC South Carolina Department of Corrections

Filing 35

ORDER RULING ON REPORT AND RECOMMENDATION: The Court hereby ACCEPTS the Report 29 . The Petitioner's objections, Doc. # 32 , are OVERRULED. The Petitioner's § 2241 Petition, Doc. # 1 , is DISMISSED without prejudice. The Court concludes that it is not appropriate to issue a certificate of appealability as to the issues raised in this petition. Signed by Chief Judge Terry L Wooten on 11/13/2014. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION

Jermaine Demetrius Miles,

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Petitioner,
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vs.
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Warden, Perry Correctional Institution,
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Respondent.
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____________________________________)

C/A No.: 4:13-cv-2455-TLW

ORDER
Petitioner Jermaine Demetrius Miles, proceeding pro se and in forma pauperis, filed this
habeas petition pursuant to 28 U.S.C. § 2254. Doc. #1. The matter now comes before this Court
for review of the Report and Recommendation (“the Report”) filed by Magistrate Judge Thomas
E. Rogers, III, to whom this case was previously assigned. Doc. #29. In the Report, the
Magistrate Judge recommends that Petition be dismissed without prejudice. Petitioner filed
objections to the Report on January 10, 2014. Doc. #32. The Court has reviewed the Report and
the objections. In conducting this review, the Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections.... The Court is not bound by the
recommendation of the magistrate judge but, instead, retains responsibility for the
final determination. The Court is required to make a de novo determination of
those portions of the report or specified findings or recommendation as to which
an objection is made. However, the Court is not required to review, under a de
novo or any other standard, the factual or legal conclusions of the magistrate
judge as to those portions of the report and recommendation to which no
objections are addressed. While the level of scrutiny entailed by the Court's
review of the Report thus depends on whether or not objections have been filed,
in either case the Court is free, after review, to accept, reject, or modify any of the
magistrate judge's findings or recommendations.
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Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992)
(citations omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report
and the objections. After careful review of the Report and objections thereto, the Court hereby
ACCEPTS the Report. Doc. #29. The Petitioner’s objections, Doc. #32, are OVERRULED.
The Petitioner’s § 2241 Petition, Doc. #1, is DISMISSED without prejudice.
The Court has reviewed the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254 in accordance with Rule 11 of the Rules Governing Section 2255 Proceedings. The Court
concludes that it is not appropriate to issue a certificate of appealability as to the issues raised in
this petition. Petitioner is advised that he may seek a certificate from the Fourth Circuit Court of
Appeals under Rule 22 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.

s/Terry L. Wooten
Chief United States District Judge
November 13, 2014
Columbia, South Carolina

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