Brinkley v. Ozmint

Filing 9

ORDER FINDING 7 Report and Recommendations PROPER; The court declines to issue a certificate of appealability as petitioner has not made a substantial showing of a denial of a constitutional right.Signed by Honorable Joseph F Anderson, Jr on 8/5/2010. (mbro, )

U N I T E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA

A lo n z o Brinkley, II,

) ) P e t i t io n e r , ) v. ) ) Jo n Ozmint, ) ) R e sp o n d e n t. ) _________________________________ )

C / A No. 6:10-1529-JFA-KFM

ORDER

P e titio n e r Alonzo Brinkley, a state prisoner proceeding without assistance of counsel, s e e k s habeas corpus relief under 28 U.S.C.§ 2254. T h e Magistrate Judge assigned to this action 1 has prepared a thorough Report and R ec o m m en d atio n and opines that the petition is successive as well as untimely. The Report sets forth in detail the relevant facts and standards of law on this matter, and the court in c o rp o ra te s such without a recitation and without a hearing. T h e petitioner was advised of his right to file objections to the Report and R e c o m m e n d a tio n , which was entered on the docket on July 12, 2010. Petitioner has not f ile d any objections within the prescribed time limits.

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. 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. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).

1

1

A s the Magistrate Judge notes in his Report, the petitioner has had a prior § 2254 in th is court and summary judgment was granted to the respondents in that case. Therefore, the p r e s e n t petition is subject to dismissal under Rule 9 of the Section 2254 Rules. A s the petitioner has not received permission from the Fourth Circuit to file a s u c c e s s iv e petition, this court is without authority to hear the § 2254 petition. United States v . Winestock, 340 F.3d 200, 205 (4th Cir. 2003) ("In the absence of pre-filing authorization, th e district court lacks jurisdiction to consider an application containing abusive or repetitive c la im s ." ). After a careful review of the record, the applicable law, and the Report and R e c o m m e n d a tio n , the court finds the Magistrate Judge's recommendation to be proper and in c o rp o ra te s the Report herein by reference. On December 1, 2009, the Rules governing Section 2254 and 2255 cases in the United S ta te s District Courts were amended to require that the district court issue or deny a c e rtif ic a te of appealability when a final ruling on a habeas petition is issued. See Rule 11(a) o f the Rules governing 28 U.S.C. § 2254 and 2255. The court has reviewed its order and p u rs u a n t to Rule 11(a) of the Rules Governing Section 2254 and Section 2255 cases, declines to issue a certificate of appealability as petitioner has not made a substantial showing of a d e n ial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 3 3 6 ­ 3 8 (2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable ju ris ts would find the district court's assessment of the constitutional claims debatable or

2

w ro n g ) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). IT IS SO ORDERED.

A u g u st 5, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

3