Hansen v. Warden Wateree River Correctional Institution

Filing 12

ORDER RULING ON REPORT AND RECOMMENDATION 8 . Petitioner's mandamus petition (Dkt. No.1) is DISMISSED without prejudice and without requiring Respondent to file an answer or other response. Signed by Honorable Richard M Gergel on 5/30/2013. (kric, )

Rf.GElVED
IN THE UNITED STATES DISTRICT COUR1tlC, !~Lr:',:C C7{,\ ;.!.~ Sf ~!N. SC

FOR THE DISTRICT OF SOUTH CAROLINA
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Petitioner, )
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vs.
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. Warden, Wateree River Correctional
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Institution,
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Respondent. )

Phillip A. Hansen, # 192632,

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\3 MAY 3 \ A

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140

Civil Action No.6: 13-1059-RMG

ORDER

This matter is before the Court on the Report and Recommendation ("R&R") of the
Magistrate Judge recommending that this Court deny Petitioner's petition for a writ of
mandamus. (Dkt. No.8). For the reasons set forth below, the Court agrees with and adopts the
R&R as the order of the Court.
Background

Petitioner is currently an inmate at the Wateree River Correctional Institution of the
South Carolina Department of Corrections serving a fifteen-year sentence following his
conviction for first-degree burglary. Petitioner previously filed a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. In that matter, the Court ultimately adopted the R&R of the Magistrate
Judge granting summary judgment to the Respondent and denying a certificate of appealability.
(Dkt. No. 42 in C.A. No.6: 11-2670-RMG). Petitioner subsequently filed this pro se petition for
writ of mandamus with respect to his prior § 2254 petition to include an additional ground
relating to the search warrant that was issued in his criminal case. (Dkt. No.1). In his prayer for
relief, Petitioner is seeking a hearing in his closed habeas action and an order "to free" Petitioner
from "his unconstitutional confinement." (Dkt. No. 1 at 3).
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In accordance with 28 U.S.C.

§ 636(b) and Local Civil Rule 73.02(B)(2) DSC, this matter was referred to a Magistrate Judge
for all pretrial proceedings. The Magistrate Judge then issued an R&R recommending the Court
(Okt. No.8).

dismiss the present action without prejudice.

Petitioner has not filed any

objections to the R&R.
Legal Standard

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making
a de novo determination of those portions of the R&R to which specific objection is made.
Additionally, the Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.c. § 636(b)(1). This Court may also
"receive further evidence or recommit the matter to the magistrate judge with instructions." Id.
Under 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss a prisoner's action if it
determines that the action: "(i) is frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant who is immune from such
relief."
In reviewing these pleadings, the Court is mindful of Plaintiffs pro se status. This Court
is charged with liberally construing the pleadings of a pro se litigant. See, e.g., De'Lonta v.

Angelone, 330 F.3d 630,633 (4th Cir. 2003). The requirement of a liberal construction does not
mean, however, that the Court can ignore a plaintiffs clear failure to allege facts that set forth a
cognizable claim, or that a court must assume the existence of a genuine issue of material fact
where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th CiT. 2012).

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LawlAnalysis
After review of the record and R&R, the Court finds the Magistrate Judge applied sound
legal principles to the facts of this case and therefore agrees with and wholly adopts the R&R as
the order of the Court. (Dkt. No.8). The Magistrate Judge properly found that the Court cannot
issue a writ of mandamus against a state official, Gurley v. Superior Court ofMecklenburg Cnty..
411 F.2d 586,587-88 (4th Cir. 1969), and that a petition for a writ of mandamus directed at a
district court must be filed with a higher federal court, Rochester v. Roberts, C.A. No.6: 12-586­
RBH-KFM, 2012 WL 2803754, at *3 (D.S.C. Apr. 2,2012), recommendation adopted by 2012
WL 2808205. Finally, the Court agrees that before Petitioner may file a second or successive
application for relief under § 2254, he must first obtain authorization by a panel of the Fourth
Circuit Court of Appeals. 28 U.S.C. § 2244.
Conclusion

For the reasons set forth above, the Court agrees with and adopts the Magistrate Judge's
R&R as the order of the Court. (Dkt. No.8). Accordingly, Petitioner's mandamus petition (Dkt.
No.1) is DISMISSED without prejudice and without requiring Respondent to file an answer or
other response.
AND IT IS SO ORDERED.

RIchard Mark Ger I
United States District Court Judge
MayM,2013
Charleston, South Carolina

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