Boone v. Eagleton et al
ORDER AND OPINION: This Court adopts the 13 Report and Recommendation and dismisses the habeas petition without prejudice. A certificate of appealability is denied. Signed by Honorable Richard M Gergel on 6/21/2017. (prou, )
IN THE UNITED ST ATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Case No.: 5:17-cv-1160-RMG
ORDER AND OPINION
Plaintiff, a state prison inmate proceeding pro se, filed this action seeking habeas relief
under 28 U.S.C. § 2254. This matter is before the Court on the Report and Recommendation ("R.
& R.") of the Magistrate Judge (Dkt. No . 13) recommending that the Court dismiss the habeas
petition without prejudice. For the reasons set forth below, this Court adopts the R. & R. as the
order of the Court and summarily dismisses the habeas petition without prejudice.
a. Pro Se Pleadings
This Court liberally construes complaints filed by pro se litigants to allow the
development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972) ; Haines v.
Kerner, 404 U.S . 519 (1972). The requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal
claim, nor can the Court assume the existence of a genuine issue of material fact where none
exists. See Weller v. Dep 't of Social Services, 901 F.2d 387 (4th Cir. 1990).
b. Magistrate's Report and Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261 , 270- 71 (1976). This Court is charged with
making a de nova determination of those portions of the Report and Recommendation to which
specific objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l).
Where the plaintiff fails to file any specific objections, "a district court need not conduct a de
nova 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." See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted).
Petitioner acknowledges that he has not exhausted his state-court remedies and that his
direct appeal is currently pending with the South Carolina Court of Appeals. He argues that the
exhaustion requirement is "futile" in his case because his sentence will expire on February 18,
2018 . The Magistrate has explained why this Court should not excuse the exhaustion
requirement simply because Petitioner's sentence may expire before he exhausts his state-court
remedies. (Dkt. No. 13 at 3-4.) Plaintiff has not filed any objections to the R. & R. This Court
finds that the Magistrate has correctly applied the controlling law to the facts of this case.
For the reasons set forth above, this Court adopts the R. & R. and dismisses the habeas
petition without prejudice.
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
(c )(3) The certificate of appealability . . . shall indicate which
specific issue or issues satisfy the showing required by paragraph
28 U.S.C. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable jurists
would find this court's assessment of his constitutional claims 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.
AND IT IS SO ORDERED.
Richard Mark Gergel
United States District Court Judge
June <.. r
Charleston, South Carolina
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