Nall v. Cartledge

Filing 18

ORDER RULING ON REPORT AND RECOMMENDATION 11 . This action isdismissed without prejudice and without issuance and service of process. A certificate of appealability is denied. Signed by Honorable Joseph F Anderson, Jr on 6/4/2013. (kric, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Emmett Ray Nall,
Petitioner,
vs.
Warden Cartledge,
Respondent.
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C/A No. 6:12-2375-JFA-KFM

ORDER

The pro se petitioner, Emmett Ray Nall, brings this action pursuant to 28 U.S.C.
§ 2241 challenging his 1997 state court conviction and life sentence..
The Magistrate Judge assigned to this action1 has prepared a Report and
Recommendation wherein he opines that the petition is actually a successive petition under
28 U.S.C. § 2254 and that it should be summarily dismissed because the petitioner has not
received permission from the Fourth Circuit Court of Appeals to file a successive § 2254
petition. The Magistrate Judge further notes that the petitioner has previously raised a
challenge to his state conviction in Nall v. Bazzle (C/A No. 6:07-1483-JFA-WMC) and Nall
v. McCall (C/A 6:11-2771-JFA-KFM), wherein the court considered the petition on the
merits and granted summary judgment to the respondent. In addition, the Magistrate Judge

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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 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. 28 U.S.C. § 636(b)(1).

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has issued a separate Report and Recommendation regarding petitioner’s other successive
petition under § 2254 (C/A No. 6:12-2424-JFA-KFM). The Report sets forth in detail the
relevant facts and standards of law on this matter, and the court incorporates such without
a recitation.
The petitioner was advised of his right to file objections to the Report and
Recommendation. The petitioner filed a one-page objection memorandum conceding that
he mistakenly filed another § 2254 habeas petition at the same time as this present § 2241
petition. He also suggests that the Magistrate Judge did not address the petitioner’s Fed. R.
Crim. P. Rule 35 motion. The court finds these objections unpersuasive and as such, they
are overruled.
The Magistrate Judge is correct in his opinion that the claims raised in this petition
are successive. As the petitioner has not received permission from the Fourth Circuit Court
of Appeals to file a successive § 2254 petition, this court is without authority to entertain it.
28 U.S.C. § 2244 and United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003) (“In the
absence of pre-filing authorization, the district court lacks jurisdiction to consider an
application containing abusive or repetitive claims.”)
After a careful review of the record, the applicable law, the Report and
Recommendation, and the objections thereto, the court finds the Magistrate Judge’s
recommendation proper and incorporated herein by reference. Accordingly, this action is
dismissed without prejudice and without issuance and service of process.
IT IS FURTHER ORDERED that a certificate of appealability is denied because the
petitioner has failed to make “a substantial showing of the denial of a constitutional right.”

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28 U.S.C. § 2253(c)(2).2
IT IS SO ORDERED.

Joseph F. Anderson, Jr.
United States District Judge

June 4, 2013
Columbia, South Carolina

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A certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U .S.C. § 2253(c)(2) (West 2009). 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); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th
Cir.2001). In the instant matter, the court finds that the petitioner has failed to make “a substantial showing
of the denial of a constitutional right.”

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