Heyward v. State of South Carolina

Filing 12

ORDER RULING ON REPORT AND RECOMMENDATION 9 . This action is dismissed without prejudice and without issuance and service of process. A certificate of appealability is denied. Signed by Honorable Joseph F Anderson, Jr on 7/27/2015. (kric, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Benjamin Heyward, #165514,
Petitioner,
vs.
Warden, Lieber Correctional Institution,
Respondent.
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C/A No. 6:15-2302-JFA-KFM

ORDER

The pro se petitioner, Benjamin Heyward, brings this action pursuant to
28 U.S.C. § 2254 challenging his 1998 state court jury conviction for kidnapping. He was
sentenced to life without parole.
The Magistrate Judge assigned to this action1 has prepared a thorough Report and
Recommendation wherein he opines that the petition is successive and 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 this
challenge to his state conviction in Heyward v. Bodison, C/A No. 6:10-1112-JFA-KFM,
wherein this court considered the petition on the merits and granted summary judgment to
the respondent. The Report sets forth in detail the relevant facts and standards of law on this
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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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matter, and the court incorporates such without a recitation.
The petitioner was advised of his right to file objections to the Report and
Recommendation, which was entered on the docket on June 10, 2015. The petitioner did not
respond to the Report. In the absence of specific objections to the Report of the Magistrate
Judge, this court is not required to give any explanation for adopting the recommendation.
See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
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, and the Report and
Recommendation, the court finds that the Magistrate Judge’s recommendation is proper and
it is 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.”
28 U.S.C. § 2253(c)(2).2

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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

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IT IS SO ORDERED.

Joseph F. Anderson, Jr.
United States District Judge

July 27, 2015
Columbia, South Carolina

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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