Thompson v. Superintendent et al

Filing 25

ORDER RULING ON REPORT AND RECOMMENDATION: This Court adopts the magistrate's Report and Recommendation 20 in its entirety. IT IS THEREFORE ORDERED that Petitioner's § 2254 petition is DISMISSED without preju dice, and without requiring Respondent to file a return, for failure to exhaust state court remedies. The Court decline to issue a certificate of appealability in this matter. Signed by Honorable G Ross Anderson, Jr on 10/18/2012. (mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION

Yolanda Thompson,

)
)
Petitioner,
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v.
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Superintendent, Leath Correctional
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Institution; State of SC,
)
)
Respondents.
)
____________________________________ )

C/A No.: 5:12-cv-01952-GRA

ORDER

This matter comes before the Court for a review of the Magistrate Judge Kaymani
D. West’s Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
Rule 73.02(B)(2)(c), D.S.C., filed on September 25, 2012. In this Report and
Recommendation, the magistrate recommends that Petitioner’s Petition under 28 U.S.C. §
2254 for Writ of Habeas Corpus be dismissed without prejudice, and without requiring
Respondent to file a return, for failure to exhaust state court remedies. After a review of
the record, this Court agrees.
Petitioner brings this claim pro se. This Court is required to construe pro se
pleadings liberally. Such pleadings are held to a less stringent standard than those drafted
by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). This Court is
charged with liberally construing a pleading filed by a pro se litigant to allow for the
development of a potentially meritorious claim. See Boag v. MacDougall, 454 U.S. 364,
365 (1982).
The magistrate makes only a recommendation to this Court. The recommendation
has no presumptive weight, and responsibility for making a final determination remains

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with this Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). This Court is
charged with making a de novo determination of those portions of the Report and
Recommendation to which specific objections are made, and this Court may “accept,
reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1). This Court may also “receive further evidence or
recommit the matter to the magistrate with instructions.” Id. In the absence of specific
objections to the Report and Recommendation, this Court is not required to give any
explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 198–99
(4th Cir. 1983). Furthermore, a failure to object waives appellate review. Wright v.
Collins, 766 F.2d 841, 845–46 (4th Cir. 1985). In the instant case, Petitioner filed no
objections to the Report and Recommendation.
After reviewing the record and Report and Recommendation, this Court finds that
the magistrate applied sound legal principles to the facts of the case. Therefore, this Court
adopts the magistrate’s Report and Recommendation in its entirety.
IT IS THEREFORE ORDERED that Petitioner’s § 2254 petition is DISMISSED without
prejudice, and without requiring Respondent to file a return, for failure to exhaust state
court remedies. The Court declines to issue a certificate of appealability in this matter.1
IT IS SO ORDERED.

1

When a district court issues a final ruling on a habeas petition, the court must issue or deny a certificate of
appealability. See Rule 11(a) of the Rules governing 28 U.S.C. § 2254 & 2255. The Court has reviewed its order
and, pursuant to Rule 11(a), declines to issue a certificate of appealability as Petitioner has not made a substantial
showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2), see Slack v. McDaniel, 529 U.S. 473, 484
(2000) (holding that, to satisfy § 2253(c), “a petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.”).

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October 18, 2012
Anderson, South Carolina

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