Jackson v. Atkinson

Filing 58

ORDER Accepting 55 Report and Recommendation. For the reasons articulated by the magistrate judge, it is therefore ORDERED that Respondent's 46 Motion toDismiss is GRANTED, and Respondent's 35 Motion to Deny Petition for Writ of Habeas Corpus is MOOT. In addition, the legal standard for the issuance of a certificate of appealability has not been met. Signed by Honorable J Michelle Childs on 11/1/13. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Derrick Bernard Jackson,

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Petitioner,
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v.
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Kenny Atkinson, Warden,
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Respondent.
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____________________________________)

Civil Action No. 8:13-01179-JMC

ORDER

This matter is before the court on the magistrate judge’s Report and Recommendation [ECF
No. 55], regarding the pro se Petitioner’s Petition for Writ of Habeas Corpus [ECF No. 1] pursuant
to 28 U.S.C. § 2241. The magistrate judge’s Report and Recommendation [Dkt. No. 55], filed on
October 8, 2013, recommends that Respondent’s Motion to Dismiss [ECF No. 46] be granted, and
Respondent's Motion to Deny Petition for Writ of Habeas Corpus [ECF No. 35] be found as moot.
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
recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
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Petitioner was advised of his right to file objections to the Report and Recommendation [ECF
No. 55-1]. 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).
Therefore, after a thorough and careful review of the Report and the record in this case, the
court finds the Report provides an accurate summary of the facts and law in the instant case and the
record in this case. The court ACCEPTS the Report and Recommendation [ECF No. 55]. For the
reasons articulated by the magistrate judge, it is therefore ORDERED that Respondent’s Motion to
Dismiss [ECF No. 46] is GRANTED, and Respondent's Motion to Deny Petition for Writ of Habeas
Corpus [ECF No. 35] is MOOT.
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

November 1, 2013
Greenville, South Carolina

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