Marsh v. South Carolina et al

Filing 19

ORDER RULING ON REPORT AND RECOMMENDATION 9 . The petition is dismissed without prejudice and without issuance and service of process upon Respondent. A certificate of appealability is denied. Signed by Honorable Cameron McGowan Currie on 5/14/13. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Timothy Leon Marsh, #145874,

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Petitioner,
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v.
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Warden Michael McCall,
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Respondent.
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___________________________________ )

C/A NO. 6:13-852-CMC-KFM

OPINION and ORDER

This matter is before the court on the pro se application for writ of habeas corpus, filed in
this court pursuant to 28 U.S.C. § 2254.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(c), DSC, this
matter was referred to United States Magistrate Judge Kevin F. McDonald for pre-trial proceedings
and a Report and Recommendation (“Report”). On April 11, 2013, the Magistrate Judge issued a
Report recommending that this matter be dismissed without prejudice as this court is without
jurisdiction to entertain it. Petitioner filed objections to the Report on May 10, 2013.
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 28
U.S.C. § 636(b).
After conducting a de novo review as to objections made, and considering the record, the
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applicable law, the Report and Recommendation of the Magistrate Judge, and Petitioner’s
objections, the court agrees with the conclusions of the Magistrate Judge. Accordingly, the court
adopts and incorporates the Report and Recommendation by reference in this Order.
Petitioner’s objections fail to address the deficiency of the petition; namely, that this petition
is successive. Title 28, United States Code, Section 2244(b)(3) places specific restrictions on second
or successive petition under 28 U.S.C. § 2254. Prior to filing a second or successive petition under
§ 2254, Petitioner must obtain certification by a panel of the Fourth Circuit Court of Appeals
allowing him to file a second or successive petition. As provided in 28 U.S.C. § 2244, “[b]efore a
second or successive application permitted by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order authorizing the district court to consider
the application.” 28 U.S.C. § 2244(b)(3)(A).
Petitioner’s motion to file a second or successive petition was denied by the Fourth Circuit
Court of Appeals on April 12, 2013. See Order, In re Timothy L. Marsh, No. 13-215, ECF No. 6
(4th Cir. Apr. 12, 2013).1 Absent authorization by that court, this court is without jurisdiction to
consider the petition. Accordingly, this petition is dismissed without prejudice and without issuance
and service of process upon Respondent.
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 constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issue or issues

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See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most
frequent use of judicial notice is in noticing the content of court records.’”)
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satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists
would find this court’s assessment of his constitutional claims is 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.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE

Columbia, South Carolina
May 14, 2013

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