Richardson v. Reynolds et al

Filing 12

AMENDED ORDER ADOPTING 6 REPORT AND RECOMMENDATIONS, dismissing this action without prejudice as a successive § 2254 petition under Rule 9 of the § 2254 Rules, and without requiring Respondents to file a return. To the extent that Petitioner requests a certificate of appealability from this Court, that certificate is denied. Signed by Honorable Henry F Floyd on 9/21/10. (rpol, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA BEAUFORT DIVISION JACKIE RICHARDSON Petitioner, vs. WARDEN CECILIA REYNOLDS and DIRECTOR JON OZMINT, S.C. Dep't of Corrections, Respondents. CIVIL ACTION NO. 9-10-1970-HFF-BM AMENDED ORDER This case was filed as a 28 U.S.C. 2254 action. Petitioner is proceeding pro se. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that this case be dismissed without prejudice as a successive 2254 petition under Rule 9 of the 2254 Rules, and without requiring Respondents to file a return. The Report was made in accordance with 28 U.S.C. 636 and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this 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 (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). The Magistrate Judge filed the Report on August 26, 2010, and the Clerk of Court entered Petitioner's objections to the Report on September 17, 2010. The Court has reviewed the objections to the Report, but finds them to be without merit. Simply stated, and as noted by the Magistrate Judge, there is no indication that the petitioner has sought leave from the United States Court of Appeals for the Fourth Circuit to file the 2254 petition in the above-captioned case. Leave from the United States Court of Appeals for the Fourth Circuit is now required under the Anti-Terrorism and Effective Death Penalty Act of 1996 for filers of successive or second 2254 petitions. (Report 3-4.) After a thorough review of the Report and the record in this case pursuant to the standard set forth above, the Court overrules Petitioner's objections, adopts the Report, and incorporates it herein. Therefore, it is the judgment of the Court that this case is DISMISSED without prejudice as a successive 2254 petition under Rule 9 of the 2254 Rules, and without requiring Respondents to file a return. To the extent that Petitioner requests a certificate of appealability from this Court, that certificate is DENIED. IT IS SO ORDERED. Signed this 21st day of September, 2010, in Spartanburg, South Carolina. s/ Henry F. Floyd HENRY F. FLOYD UNITED STATES DISTRICT JUDGE ***** NOTICE OF RIGHT TO APPEAL The parties are hereby notified of the right to appeal this Order within thirty days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. 2

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