Joseph v. McKie

Filing 18

ORDER adopting 12 Report and Recommendation and dismissing the 1 petition. A certificate of appealability is denied. Signed by Honorable Richard M Gergel on 12/29/14. (kmca)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Marcus A. Joseph, #147764,
Petitioner,

v.
Warden B. McKie,
Respondent.

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Civil Action No.8: 14-cv-4lOO-RMG

ORDER

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Marcus A. Joseph, Petitioner, a state prisoner proceeding pro se, has filed a habeas
petition pursuant to 28 U.S. C. § 2254. This matter is before the Court on the Report and
Recommendation ("R&R") of the Magistrate Judge (Dkt. No. 12) recommending that this Court
summarily dismiss the petition. The Court hereby adopts the R&R.
Upon the issuance of the R&R, Petitioner was advised that any written objections to the
R&R must be made within 14 days of service, and that in the absence of timely written
objections this Court would provide limited "clear error" review and Petitioner would waive his
right to appeal the judgment of the District Court. (Dkt. No. 12 at 8). Petitioner has not filed
objections to the R&R.
The Court has reviewed the R&R, the full administrative record in this matter and the
relevant legal authorities. The Court finds that the Magistrate Judge ably and promptly
summarized the factual and legal issues and appropriately recommended that the petition be
dismissed since the Court does not have jurisdiction to consider it. Therefore, the Court hereby
adopts the R&R as the order of this Court and dismisses the petition.
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 the 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 district court is likewise debatable. See Miller-EI 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.
AND IT IS SO ORDERED.

Richard Mark Gerge
United States District C urt Judge
December~,

2014
Charleston, South Carolina

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