Frazier v. Taylor

Filing 18

ORDER adopting 13 Report and Recommendation that the Petition is DISMISSED without prejudice and without requiring Respondent to file an answer or return. Additionally, the court declines to issue a certificate of appealability. Signed by Honorable Timothy M Cain on 9/4/14. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Julius W. Frazier, #232788,
Petitioner,
v.
Warden E. Taylor,
Respondent.

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C/A No. 8:14-2786-TMC
ORDER

This matter is before the court on Petitioner’s petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02,
D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before the court is the
Magistrate Judge’s Report and Recommendation (“Report”), recommending that the petition be
dismissed without prejudice. (ECF No. 13). Petitioner timely filed objections to the Report. (ECF
No. 15).
The Magistrate Judge makes only a recommendation to the court. The Report has no
presumptive weight and the responsibility to make a final determination in this matter remains
with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). In making that
determination, the court is charged with conducting a de novo review of those portions of the
Report to which either party specifically objects. See 28 U.S.C. § 636(b)(1). Then, the court may
accept, reject, or modify the Report or recommit the matter to the magistrate judge. Id.
As set forth above, Petitioner timely filed objections to the Report. (ECF No. 15).
However, the court has thoroughly reviewed the Report, Petitioner’s objections, and the record in
this case and finds no reason to deviate from the Report’s recommended disposition. Based on
the foregoing, the court finds Petitioner’s objections are without merit. Accordingly, the court

adopts the Report (ECF No. 13), and the Petition is DISMISSED without prejudice and without
requiring Respondent to file an answer or return.
A certificate of appealability will not issue absent "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). A prisoner satisfies this standard by demonstrating
that reasonable jurists would find both that his constitutional claims are debatable and that any
dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In the instant
matter, the court finds that Petitioner has failed to make "a substantial showing of the denial of a
constitutional right." Accordingly, the court declines to issue a certificate of appealability.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
September 4, 2014
Anderson, South Carolina

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