Mitchell v. Moore et al

Filing 21

ORDER adopts Report and Recommendations re 14 Report and Recommendation. Petitioners petition is DISMISSED without prejudice and without requiring Respondent to file an answer or return. A Certificate of Appealability is denied. Signed by Honorable Timothy M Cain on 5/10/2017.(gpre, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Robert Eugene Mitchell,
Petitioner,
v.
State of South Carolina, and
Gary Bryant, Director of Anderson
County Detention Center,
Respondents.

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C/A No. 8:17-66-TMC
ORDER

This matter is before the court on Petitioner Robert Eugene Mitchell’s petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b) and Local
Rule 73.02(B)(2), D.S.C., all pre-trial proceedings were referred to a magistrate judge. On
February 10, 2017, Magistrate Judge Jacquelyn D. Austin filed a Report and Recommendation
recommending Petitioner’s petition be dismissed without prejudice and without requiring
Respondent to file an answer or return. (ECF No. 14). Petitioner timely filed objections (ECF
No. 16).
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).
In her Report, the magistrate judge found that because Petitioner has not yet exhausted his
state court remedies, this Petition should be dismissed. (Report at 3). In his Objections filed
February 13, 2017, Petitioner states that he had filed an application for post-conviction relief
(“PCR”) on February 4, 2017, and that the state court had not filed or otherwise acted on it.
(Objections at 2). Because of this alleged inaction, he asks that this court excuse him from the
exhaustion requirement. Id. at 3. Reviewing the current state court records online, See Philips v.
Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (holding courts “may properly take
judicial notice of matters of public record.”), it appears Petitioner now currently has a pending
PCR action in state court in regard to the convictions he is challenging in this habeas action. See
Mitchell v. State of South Carolina, 2017-CP-0400952 (http://publicindex.sccourts.org/Anderson/
PublicIndex/CaseDetails) (last visited May 10, 2017). Accordingly, this habeas petition should
be dismissed while Petitioner exhausts his state court remedies.
Based on a review of the record in this case pursuant to the standards set forth above, the
court adopts the Report and Recommendation (ECF No. 14). Accordingly, Petitioner’s 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.
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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
Anderson, South Carolina
May 10, 2017

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