Jones v. Bragg

Filing 19

ORDER adopting 14 Report and Recommendation. It is therefore ORDERED that this action is DISMISSED without prejudice and without requiring respondent to file a return. Also, the Court finds that the legal standard for the issuance of a certificate of appealability has not been met. Signed by Honorable Mary G Lewis on 4/22/14. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Rodney Dewayne Jones, #97157-071,

) Civil Action No.: 8:14-766-MGL
)
Petitioner, )
)
v.
)
OPINION AND ORDER
)
M. Travis Bragg,
)
)
Respondent. )
_______________________________________ )
On March 5, 2014,1 Petitioner Rodney Dewayne Jones (“Petitioner”), an inmate at the
Federal Correctional Institution, Bennettsville, South Carolina, filed the instant petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1.) In accordance with 28 U.S.C.
§ 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this matter was referred to United States
Magistrate Judge Jacquelyn D. Austin for pre-trial proceedings and a Report and Recommendation
(“Report”).
On March 26, 2014, the Magistrate Judge issued a Report and Recommendation
recommending that the court dismiss Petitioner's petition without prejudice and without requiring
Respondent to file an Answer or return as the claims raised by Petitioner are not proper § 2241
grounds. (ECF No. 14.) The Magistrate Judge advised Plaintiff of the procedures and requirements
for filing objections to the Report and Recommendation and the serious consequences if he failed
to do so. Id. at 9. Plaintiff has filed no objections and the time for doing so expired on April 14,
2014, 2013.

1

This filing date reflects that the envelope containing the petition was stamped as having been
received on March 5, 2014, by the Federal Correctional Inst., Bennettsville, SC. (ECF No.1-2.) Houston
v. Lack, 487 U.S. 266 (1988) (holding prisoner's pleading is considered filed when filed with prison
authorities for forwarding to the district court).

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.
See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged
with making a de novo determination of any portion of the Report and Recommendation of the
Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in
whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b). 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).
After a careful review of the record, the applicable law, and the Report and Recommendation
of the Magistrate Judge, the court finds no clear error. Accordingly, the court adopts and
incorporates the Report and Recommendation (ECF No. 14) by reference into this order. It is
therefore ORDERED that action is DISMISSED without prejudice and without requiring respondent
to file a return.
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,” and “(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 debatable or wrong and that any dispositive procedural ruling by the
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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 Court finds that the legal standard for the issuance of a certificate of appealability has not been
met.
IT IS SO ORDERED.
s/ Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
April 22, 2014.

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