Cox et al v. South Carolina

Filing 21

ORDER RULING ON REPORT AND RECOMMENDATION adopts 17 Report and Recommendation Petitioners habeas petition is DISMISSED without prejudice and without requiring Respondent to file an answer or return. The court finds that a pr e-filing injunction is warranted for the reasons stated in the Report. 1. Upon Petitioner submitting a habeas corpus petition the Clerk of Court shall assign a case number and send the case for review in order for the magistrate judge to determine w hether Petitioner alleges he has written permission from the Court of Appeals to file the action. 2. When appropriate, the magistrate judge shall direct Petitioner to provide written authorization from the Court of Appeals within a certain time frame . 3. Should Petitioner fail to provide written authorization from the Court of Appeals within the certain time frame, the action will be dismissed without prejudice and without issuance and service of process. The court declines to issue a certificate of appealability. Signed by Honorable Timothy M Cain on 1/30/2017. (gpre, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Paul Leslie Cox, # 75206,

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Petitioner,
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v.
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State of SC; Warden of Perry Correctional )
Institution,
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Respondent.
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Civil Action No. 8:16-1914-TMC

ORDER

Petitioner Paul Leslie Cox, a state inmate proceeding pro se, filed this Petition seeking
habeas corpus relief pursuant to 28 U.S.C. § 2254.1 Before the court is the Magistrate Judge’s
Report and Recommendation (“Report”), recommending that the court dismiss Petitioner’s
action without prejudice and without requiring Respondent to file an answer or return. The
Report also recommended that the court enter a pre-filing injunction. (ECF No. 17). Petitioner
was advised of his right to file objections to the Report. (ECF No. 17 at 10.) However,
Petitioner has not filed objections, and the time to do so has now run.
The Report has no presumptive weight and the responsibility to make a final
determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). In
the absence of objections to the Report, 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

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In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02, DSC, this matter was
initially referred to a magistrate judge.
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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).
Conclusion
After a thorough review of the Report and the record in this case, the court adopts the
Magistrate Judge’s Report and Recommendation (ECF No. 17) and incorporates it herein.
Therefore, Petitioner’s habeas petition is DISMISSED without prejudice and without requiring
Respondent to file an answer or return.
Furthermore, the court finds that a pre-filing injunction is warranted for the reasons stated
in the Report. Therefore, the court imposes the following pre-filing injunction:
1. Upon Petitioner submitting a habeas corpus petition pursuant to 28 U.S.C. § 2254 that
seeks to attack his Spartanburg County April 16, 1987 kidnapping conviction and/or sentence of
life imprisonment, the Clerk of Court shall assign a case number (for docket control purposes)
and send the case to the assigned magistrate judge for review in order for the magistrate judge to
determine whether Petitioner alleges he has written permission from the Court of Appeals to file
the action.
2. When appropriate, the magistrate judge shall direct Petitioner to provide written
authorization from the Court of Appeals within a certain time frame.
3. Should Petitioner fail to provide written authorization from the Court of Appeals
within the certain time frame, the action will be dismissed without prejudice and without
issuance and service of process.
In addition, a certificate of appealability will not issue to a prisoner seeking habeas relief
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

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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 this case, the court finds that the 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

January 30, 2017
Anderson, South Carolina

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