Murillo v. Immigration & Customs Enforcement et al
Filing
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ORDER RULING ON REPORT AND RECOMMENDATION: The court finds no clear error, and therefore, adopts the Report and Recommendation 25 and incorporates it herein by reference. Accordingly, Petitioner's Petition is DISMISSED without prejudice. The court declines to issue a certificate of appealability. Signed by Honorable Timothy M Cain on 12/14/2015. (mcot, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Miguel Murillo,
Petitioner,
v.
Warden Edsel Taylor,
Respondent.
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Civil Action No. 5:15-3381-TMC
ORDER
Petitioner Miguel Murillo, a state inmate proceeding pro se, filed this Petition seeking
habeas corpus relief pursuant to 28 U.S.C. § 2241.1 Before the court is the magistrate judge’s
Report and Recommendation (“Report”), recommending that the court dismiss the Petition
without prejudice. (ECF No. 25.) Petitioner was advised of his right to file objections to the
Report. (ECF No. 25 at 6.) In lieu of filing objections, Petitioner filed a Reply stating that he
assents to the Report without objection. (ECF No. 28).
The Report has no presumptive weight and the responsibility to make a final determination
remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). In the absence of
objections to the Report, 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).
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In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02, DSC, this matter was
initially referred to a magistrate judge.
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After a thorough review of the applicable law, the record in this case, and the Report, the
court finds no clear error and, therefore, adopts the Report and incorporates it herein by
reference. Accordingly, Petitioner’s Petition is DISMISSED without prejudice.
In addition, a certificate of appealability will not issue to a prisoner seeking habeas relief
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 this case, the court finds that the 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
December 14, 2015
Anderson, South Carolina
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