Taylor v. Reynolds

Filing 14

ORDER ACCEPTING 9 Report and Recommendation; DENYING 12 Motion for Certificate of Appealability filed by Anthony R Taylor. The case is dismissed without prejudice and without requiring the respondent tofile a return. Signed by Honorable Terry L Wooten on 10/31/2012. (mbro)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Anthony R. Taylor, #197565,

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Civil Action No.: 6:12-cv-02831-TLW
Petitioner,
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vs.
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ORDER
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Cecilia R. Reynolds, Warden,
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Respondent.
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___________________________________ )
Petitioner, Anthony R. Taylor (“petitioner”), brought this habeas corpus action, pro se,
pursuant to 28 U.S.C. § 2241 on October 2, 2012. (Doc. #1). Petitioner placed his allegations on
a § 2254 Petition form and indicates that he is filing the § 2241 Petition pursuant to Local Civil
Rule 83.VIII.06 and pursuant to 28 U.S.C. § 2241(c)(3).
This matter now comes before this Court for review of the Report and Recommendation
(Athe Report@) filed by United States Magistrate Judge Kevin F. McDonald, to whom this case had
previously been assigned pursuant to 28 U.S.C. ' 636(b) and Local Rule 73.02(B)(2) (D.S.C.).
(Doc. #9). In the Report, Magistrate Judge McDonald recommends that the District Court
dismiss the § 2241 Petition in the above-captioned case without prejudice and without requiring
the respondent to file an Answer or return. (Doc. # 9). In the Report, Magistrate Judge
McDonald also recommends that the District Court deny a Certificate of Appealability. (Doc.
#9). Petitioner filed objections to the Report on October 25, 2012. (Doc. #11).
This Court is charged with conducting a de novo review of any portion of the Magistrate
Judge’s Report to which a specific objection is registered, and may accept, reject, or modify, in
whole or in part, the recommendations contained in that report. 28 U.S.C. § 636. In conducting
this review, the Court applies the following standard:

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The magistrate judge makes only a recommendation to the Court, to which any
party may file written objections. . . . The Court is not bound by the
recommendation of the magistrate judge but, instead, retains responsibility for the
final determination. The Court is required to make a de novo determination of
those portions of the report or specified findings or recommendation as to which an
objection is made. However, the Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of the magistrate judge as to
those portions of the Report and Recommendation to which no objections are
addressed. While the level of scrutiny entailed by the Court's review of the Report
thus depends on whether or not objections have been filed, in either case, the Court
is free, after review, to accept, reject, or modify any of the magistrate judge's
findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citations
omitted).
In light of the standard set forth in Wallace, this Court has reviewed, de novo, the Report
(Doc. #9) and the objections (Doc. #11). After careful review of the Report and objections
thereto, this Court ACCEPTS the Report. (Doc. #9). Therefore, for the reasons articulated by
the Magistrate Judge, IT IS HEREBY ORDERED that the Magistrate Judge=s Report is
ACCEPTED (Doc. #9), petitioner=s objections are OVERRULED (Doc. #11); and the Petition in
the above-captioned case is dismissed without prejudice and without requiring the respondent to
file a return.
This Court has reviewed this Petition in accordance with Rule 11 of the Rules Governing
Section 2254 Proceedings. The Court concludes that it is not appropriate to issue a Certificate of
Appealability as to the issues raised herein. Therefore, petitioner’s Motion for Consideration of
Certificate of Appealability is DENIED (Doc. #12). Petitioner is advised that he may seek a
certificate from the Fourth Circuit Court of Appeals under Rule 22 of the Federal Rules of
Appellate Procedure.
IT IS SO ORDERED.
s/ Terry L. Wooten
United States District Judge
October 31, 2012
Florence, South Carolina
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