Roman v. Joyner

Filing 47

ORDER RULING ON REPORT AND RECOMMENDATION 43 . The court GRANTS Respondent H. Joyners Motion to Dismiss or in the Alternative, for Summary Judgment (ECF No. 31), DISMISSES without prejudice Plaintiff Emeregildo Romans Petition for Writ of Habeas Corpus (ECF No. 1) for lack of subject matter jurisdiction, and denies as moot Petitioners Motion to Voluntarily Dismiss [ECF 45]. Signed by Honorable J Michelle Childs on 5/10/2019. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Emeregildo Roman,

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)
Petitioner,
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v.
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H. Joyner,
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Respondent.
)
____________________________________)

Civil Action No.: 6:18-cv-01098-JMC

ORDER

Before the court for review is the Magistrate Judge’s Report and Recommendation
(“Report”) filed on April 19, 2019 (ECF No. 45). The court ACCEPTS the Magistrate Judge’s
Report and incorporates it herein by reference. For the reasons set out in the Report, the court
GRANTS Respondent H. Joyner’s Motion to Dismiss or in the Alternative, for Summary
Judgment (ECF No. 31), DISMISSES without prejudice Plaintiff Emeregildo Roman’s Petition
for Writ of Habeas Corpus (ECF No. 1) for lack of subject matter jurisdiction, and DENIES AS
MOOT Petitioner’s Motion to Voluntarily Dismiss (ECF No. 45).
I. FACTUAL AND PROCEDURAL BACKGROUND
The Report sets forth the relevant facts and legal standards, which this court incorporates
herein without a full recitation. (ECF No. 12 at 1–5, 7.) As brief background, on May 20, 2018,
Petitioner, proceeding pro se, filed this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241.
(ECF No. 1.) On August 8, 2018, Petitioner filed an Amended Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2241. (ECF No. 27.) On September 6, 2018, Respondent filed a Motion to
Dismiss or in the Alternative, for Summary Judgment. (ECF Nos. 31, 31-1.) On September 7,

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2018, the Magistrate Judge entered a Roseboro1 order, advising Petitioner of the motion to dismiss
and summary judgment procedures and the consequences of failing to adequately respond. (ECF
No. 32.) On November 26, 2018, after being granted an extension, Petitioner filed a Reply in
Opposition to Respondent’s Motion. (ECF Nos. 38, 41.)
On April 19, 2019, the Magistrate Judge entered his Report. (ECF No. 43.) The Report
recommends granting Respondent’s Motion (ECF No. 31) because (1) “[P]etitioner has failed to
satisfy his burden of demonstrating that § 2255 is an inadequate or ineffective means of
challenging the validity of his detention”; and (2) “[P]etitioner’s convictions under [18 U.S.C.] §
924(c) are predicated on federal armed bank robbery, which is a crime of violence under the force
clause of § 924(c)(3)(A), [thus,] a determination that the residual clause of § 924(c) is
unconstitutional would not provide him any relief.” (Id. at 6, 9.)
On May 8, 2019, after reviewing the Magistrate Judge’s Report, Petitioner filed a Motion
to Voluntarily Dismiss his § 2241 Habeas Petition until the resolution of a case currently pending
before the United States Supreme Court. (ECF No. 45 at 1.)
II. STANDARD OF REVIEW
The Magistrate Judge’s Report and Recommendation is made in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02 for the District Court of South Carolina. The Magistrate
Judge only makes a recommendation to this court; the responsibility to make a final determination
remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). This court engages
in a de novo review of those portions of the Report and Recommendation to which the parties have
made specific objections. See 28 U.S.C. § 636(b)(1). See also Fed. R. Civ. P. 72(b)(3). The court

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In Roseboro v. Garrison, the United States Court of Appeals for the Fourth Circuit held that
district courts are required to provide pro se litigants with an explanation of summary judgment
procedures. 528 F.2d 309, 310 (4th Cir. 1975).
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may accept, reject or modify, in whole or in part, the Magistrate Judge’s recommendation or
recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
III. DISCUSSION
On May 19, 2019, as part of the Report, the Magistrate Judge notified the parties of their
right to file objections by May 3, 2019. (ECF No. 43 at 11.) Neither of the parties filed any
objections to the Report by this date. In the absence of objections to the Magistrate Judge’s Report,
this court is not required to provide an explanation for adopting the recommendations without
modification. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Absent objections, the
court must only ensure that there is no clear error on the face of the record in order to accept the
recommendations. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note). If a party fails to file specific, written
objections to the Report, the party forfeits the right to appeal the court’s decision concerning the
Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce,
727 F.2d 91 (4th Cir. 1984). Accordingly, since none of the parties filed any objections to the
Report, and the court observes no clear error on the face of the record, the court accepts the
Magistrate Judge’s Report. See Diamond, 416 F.3d at 315; Camby, 718 F.2d at 199. Also, because
the court accepts the Magistrate Judge’s Report, the court denies as moot Petitioner’s Motion to
Voluntarily Dismiss (ECF No. 45).2
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Several circuit courts have held that if a “§ 2241 petition was decided on the merits, § 2244(a)
bar[s] a second § 2241 habeas petition which presents no new grounds for relief unless the ends of
justice require consideration of the merits.” Fleming v. Brooks, No. 2:01-CV-582, 2002 WL
32488475, at *4 (E.D. Va. June 21, 2002), aff’d, 57 F. App’x 177 (4th Cir. 2003). Thus, as far as
the court can tell, and considering that Petitioner’s § 2241 Habeas Petition is being dismissed
without prejudice, there would be no bar to Petitioner filing another § 2241 Habeas Petition based
on a new decision by the United States Supreme Court. See id. (“[If a] § 2241 petition was decided
on the merits, § 2244(a) bar[s] a second § 2241 habeas petition which presents no new grounds for
relief unless the ends of justice require consideration of the merits.” (emphasis added)).
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IV. CONCLUSION
After a thorough and careful review of the record, the court finds the Magistrate Judge’s
Report and Recommendation provides an accurate summary of the facts and law in this case.
Accordingly, the court ACCEPTS the Magistrate Judge’s Report and Recommendation (ECF No.
43) and incorporates it herein by reference. For the reasons set out in the Report, the court
GRANTS Respondent H. Joyner’s Motion to Dismiss or in the Alternative, for Summary
Judgment (ECF No. 31), DISMISSES without prejudice Plaintiff Emeregildo Roman’s Petition
for Writ of Habeas Corpus (ECF No. 1) for lack of subject matter jurisdiction, and DENIES AS
MOOT Petitioner’s Motion to Voluntarily Dismiss (ECF No. 45).
IT IS SO ORDERED.

United States District Judge
May 10, 2019
Columbia, South Carolina

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