Frasier v. South Carolina, State of et al

Filing 17

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the 12 Report by reference in this Order. The Petition is dismissed without prejudice. 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. Signed by Honorable Donald C Coggins, Jr on 1/22/2018. (prou, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
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Petitioner,
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vs.
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Sheriff Al Cannon,
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Respondent. )
__________________________________________)
Edward J. Frasier,

C/A No. 5:17-cv-02972-DCC

ORDER

Petitioner, proceeding pro se, is seeking habeas corpus relief pursuant to 28 U.S.C. § 2241.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), (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 January 3, 2018, the Magistrate Judge issued a Report
recommending that the Petition be dismissed without prejudice and without requiring Respondent
to file a return. ECF No. 12. The Magistrate Judge advised Petitioner of the procedures and
requirements for filing objections to the Report and the serious consequences if he failed to do so.
Petitioner has filed no objections, and the time to do so has passed.
The Magistrate Judge makes only a recommendation to this 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 (1976). The Court is charged with making a de novo
determination of any portion of the Report 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 U.S.C.
§ 636(b). The Court will review the Report 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 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 considering the record in this case, the applicable law, and the Report of the Magistrate
Judge, the Court finds no clear error and agrees with the Report’s recommendation that the Petition
should be dismissed without prejudice and without requiring Respondent to file a return.
Accordingly, the Court adopts the Report by reference in this Order. The 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/ Donald C. Coggins, Jr.
United States District Judge
January 22, 2018
Spartanburg, South Carolina