Degree v. Cartlege
ORDER RULING ON REPORT AND RECOMMENDATION 9 . It is ORDERED that Petitioners § 2254 petition is DISMISSED. A certificate of appealability is denied. Signed by Honorable Bruce Howe Hendricks on 2/23/2017. (kric, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Jeffrey Degree, #308714,
) Civil Action No.: 8:16-3887-BHH
OPINION AND ORDER
Warden Leroy Cartledge,
Jeffrey Degree, (“Petitioner”), proceeding pro se, filed this application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In accordance with 28
U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the action was referred to United States
Magistrate Judge Jacquelyn D. Austin for pretrial handling and a Report and
Recommendation (“Report”). Judge Austin recommends that this action be summarily
dismissed as a successive § 2254 habeas action which seeks to overturn the same
conviction, and which the United States Court of Appeals for the Fourth Circuit has not
authorized. In fact, the Fourth Circuit denied Petitioner’s motion to file a successive
action. (ECF No. 9.) The Report sets forth in detail the relevant facts and standards of
law on this matter and the Court incorporates them without recitation.
Petitioner filed this action challenging his conviction of kidnapping and criminal
sexual conduct. On January 26, 2017, the Magistrate Judge issued a Report (ECF No.
9), and on January 30, 2017, Petitioner filed his Objections (ECF No. 11). The Court
has reviewed the Objections, but finds them to be without merit. Therefore, it will enter
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the Court. The
recommendation has no presumptive weight. The responsibility to make a final
determination remains with the Court. 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 to which specific objection is made, and the Court may accept, reject, or modify,
in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter
with instructions. 28 U.S.C. § 636(b)(1). However, the Court need not conduct a de
novo review when a party makes only “general and conclusory objections that do not
direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed
only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005).
The Magistrate Judge found that this action should be dismissed as an
unauthorized, successive § 2254 habeas action which seeks to overturn the same
conviction. Petitioner filed Objections to the Report, which the Court has carefully
reviewed. Petitioner’s filing fails to state a specific objection or direct the Court to any
specific error in the Magistrate’s proposed findings and recommendations. Rather,
Plaintiff’s rambling Objections merely rehash points in his Complaint, or raise new
points. The Report concludes that this Court does not have jurisdiction to consider
Petitioner’s successive § 2254 action, and the Court agrees with the analysis of the
Because the Court agrees with the cogent analysis by the Magistrate Judge, and
because that analysis evinces no clear error, the Court need not discuss the same
issues for a second time here. Therefore, the Court overrules Petitioner’s Objections.
For the reasons stated above and by the Magistrate Judge, the Court overrules
Petitioner’s Objections and adopts and incorporates by reference the Magistrate
Judge’s Report herein. It is therefore ORDERED that Petitioner’s § 2254 petition is
CERTIFICATE OF APPEALABILITY
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 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.
Therefore, a certificate of appealability is DENIED.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
February 23, 2017
Greenville, South Carolina
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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