James v. Stevenson

Filing 26

ORDER RULING ON REPORT AND RECOMMENDATIONS. The court adopts the Magistrate Judges Report and Recommendation [Doc. 15]. It is therefore ORDERED that Petitioners Petition for Writ of Habeas Corpus [Doc. 1] is DISMISSED withoutprejudice. Signed by Honorable J Michelle Childs on 10/19/2011. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
David James,

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Petitioner,
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v.
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Warden Robert M. Stevenson,
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Broad River Correctional Institution,
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Respondent.
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____________________________________)

C.A. No. 8:11-cv-01643-JMC

ORDER

This matter is before the court on the Magistrate Judge’s Report and Recommendation [Doc.
15], regarding the pro se Petitioner’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254. The Magistrate Judge’s Report and Recommendation [Doc. 15], filed on August 9, 2011,
recommends that the Petitioner’s Petition [Doc. 1] for a Writ of Habeas Corpus in the
above-captioned case be dismissed without prejudice. The Report and Recommendation sets forth
in detail the relevant facts and legal standards on this matter, and the court incorporates the
Magistrate Judge’s recommendation herein without a recitation.
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 of South Carolina. The Magistrate Judge
makes only a recommendation to this court. The recommendation has no presumptive weight. The
responsibility to make a final determination remains with this court. See Mathews v. Weber, 423
U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific objections are made, and the court
may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation or
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recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
Petitioner was advised of his right to file objections to the Report and Recommendation
[Doc. 15 at 6]. However, Petitioner filed no objections to the Report and Recommendation.
In the absence of objections to the Magistrate Judge’s Report and Recommendation, this
court is not required to provide an explanation for adopting the recommendation. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in the absence of a timely filed objection, a
district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation.’” 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). Furthermore, failure to file specific written objections to the Report and
Recommendation results in a party’s waiver of the right to appeal from the judgment of the District
Court based upon such recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140
(1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th
Cir. 1984).
After a thorough review of the Report and Recommendation and the record in this case, the
court adopts the Magistrate Judge’s Report and Recommendation [Doc. 15]. It is therefore
ORDERED that Petitioner’s Petition for Writ of Habeas Corpus [Doc. 1] is DISMISSED without
prejudice.
Certificate of Appealability
The law governing certificates of appealability 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.
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(c)(3) The certificate of appealability . . . shall indicate which specific issue or
issues 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.

IT IS SO ORDERED.

United States District Judge
Greenville, South Carolina
October 19, 2011

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