Jones v. Cannon et al

Filing 15

ORDER RULING ON REPORT AND RECOMMENDATION 13 . This action is DISMISSED without prejudice and without requiring the Respondent to file an answer or return. The court declines to issue a certificate of appealability. Signed by Honorable Timothy M Cain on 11/27/2017. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Bernard Tracy Jones,
Petitioner,
v.
Scarlett Wilson,
Atty Name Unknown,
Sheriff Al Cannon,
Chief Beatty,
Respondent.

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Civil Action No. 8:17-02751-TMC
ORDER

Petitioner, a pretrial detainee proceeding in forma pauperis, seeks relief under 28 U.S.C. §
2241. With the assistance of counsel, Petitioner filed this Petition for writ of habeas corpus on
October 10, 2017 (ECF No. 1). 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 this action
be dismissed without prejudice and without requiring Respondent to file an answer or return. (ECF
No. 13). This decision was based on the doctrines of abstention and exhaustion of state remedies.
(ECF No. 13 at 6). The Report included a notice to the Petitioner that he may file objections to the
Report within fourteen days of the date of service of the Report. (ECF No. 13 at 8). However,
Petitioner filed no objections to the Report, and the time to do so has now run.
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
the absence of objections, this court is not required to provide an explanation for adopting the
Report. 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
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satisfy itself that there is no clear error on the face of the record in order to 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).
After a careful and thorough review of the record under the appropriate standards, as set
forth above, the court adopts the Report (ECF No. 13), which is incorporated herein by reference.
Accordingly, this action is DISMISSED without prejudice and without requiring the 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 this 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 the petitioner 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
November 27, 2017

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