Felder v. McKie

Filing 37

ORDER granting Petitioner's 30 Motion and dismissing the petition without prejudice. Respondent's 33 Motion for summary judgment is hereby deemed moot. In addition, the legal standard for the issuance of a certificate of appealability has not been met. Therefore, a certificate of appealability is denied. Signed by Honorable Cameron McGowan Currie on 9/5/12.(kmca)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON DIVISION
Stanley Felder, #284425,

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Petitioner,
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v.
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Bernard McKie,
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Respondent.
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___________________________________ )

C/A NO. 8:11-2158-CMC-JDA

OPINION and ORDER

This matter is before the court1 on Petitioner’s motion for voluntary dismissal. ECF No. 30
(filed Aug. 16, 2012). Respondent has filed a response to Petitioner’s motion, arguing that dismissal
should be with prejudice or moving in the alternative for summary judgment on the merits. ECF No.
32.
Despite being provided specific notice and warning that dismissal of this petition may
significantly prejudice his ability to have a future petition for writ of habeas corpus considered on
the merits in this court, Petitioner specifically moves for dismissal of this petition under Federal Rule
of Civil Procedure 41(a).
Therefore, the undersigned grants Petitioner’s motion and dismisses the petition without
prejudice. Respondent’s motion for summary judgment is hereby deemed moot.

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Petitions for writ of habeas corpus are, pursuant to the Local Rules of this Court, referred
to a Magistrate Judge of this District for pretrial proceedings. See Local Civil Rule 73.02 (B)(2)(c),
DSC. However, in the interest of time, the undersigned withdraws the reference and proceeds to
address Petitioner’s motion without the aid of a Report and Recommendation.
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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 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
September 5, 2012

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