Baker v. Warden
Filing
55
ORDER adopting 50 Report and Recommendation; granting 30 Motion to Dismiss. Signed by the Honorable Bruce Howe Hendricks on 3/27/2015. (hcic, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Demario Jaquon Baker, #18155-171,
) Civil Action No.: 5:14-1006-BHH
)
Petitioner, )
)
v.
)
OPINION AND ORDER
)
Warden, FCI Williamsburg,
)
)
Respondent. )
__________________________________ )
The petitioner Demario Jaquon Baker (“the petitioner”), proceeding pro se, filed this
habeas relief action pursuant to 28 U.S.C. § 2241. (ECF No. 1.) This matter is before the
Court on the respondent’s motion to dismiss. (ECF No. 30.) In accordance with 28 U.S.C.
§ 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this matter was referred to
United States Magistrate Judge Kaymani D. West, for pre-trial proceedings and a Report
and Recommendation (“Report”). On December 17, 2014, Magistrate Judge West issued
a Report recommending that the respondent’s motion to dismiss be granted and the
petition for writ of habeas corpus be dismissed. (ECF No. 50.) The Magistrate Judge
advised the petitioner of the procedures and requirements for filing objections to the Report
and the serious consequences if he failed to do so. (ECF No. 50 at 9.)
The petitioner has filed no objections and the time for doing so expired on January
5, 2015. On December 29, 2014, the envelope containing the petitioner’s copy of the
Report and Recommendation was returned to the Clerk of Court, marked "Return to
Sender, Cannot Identify by Name of Number, Refused." (ECF No. 52.) The petitioner was
advised by order filed May 9, 2014 (ECF No. 7), of his responsibility to notify the Court in
writing if his address changed. The petitioner was also informed that his case could be
dismissed for failing to comply with the Court's order. (ECF No. 7 at 2.)
The Magistrate Judge makes only a recommendation to the district court. The
recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the court. See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549,
46 L.Ed.2d 483 (1976). The court is charged with making a de novo determination of any
portion of the Report and Recommendation of the Magistrate Judge to which a specific
objection is made. The court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. § 636(b). The court reviews the Report and
Recommendation only for clear error in the absence of an objection. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “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”) (citation omitted).
After a thorough review of the record of this matter, the applicable law, and the
Report of the Magistrate Judge, the Court finds no clear error. Accordingly, the Court
adopts and incorporates the Report and Recommendation (ECF No. 50) by reference into
this order.
It is therefore ORDERED that the respondent’s motion to dismiss (ECF No. 30) be
GRANTED and the petition for writ of habeas corpus be DISMISSED.
CERTIFICATE OF APPEALABILITY
The governing law provides that:
(c) (2) A certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.
(c) (3) The certificate of appealability . . . shall indicate which specific issue
or issues satisfy the showing required by paragraph (2).
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28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable
jurists would find this court’s assessment of his constitutional claims is debatable or wrong
and that any dispositive procedural ruling by the district court is likewise debatable. 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 this case, the legal standard for
the issuance of a certificate of appealability has not been met. Therefore, a certificate of
appealability is denied.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
March 27, 2015
Greenville, South Carolina
*****
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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