Brown v. Rivera

Filing 12

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. The petition [Doc. 1] is DISMISSED without prejudice and without requiringthe Respondent to file an answer. Certificate of appealability is denied. Signed by Honorable J Michelle Childs on 2/21/2012.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Kenneth Brown, #94689-071,

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Petitioner,
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v.
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Warden Mildred L. Rivera,
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Respondent.
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____________________________________)

C.A. No. 9:12-cv-00027-JMC

ORDER

This matter is before the court for a review of the Magistrate Judge’s Report and
Recommendation (“Report”), [Doc. 10], filed on January 30, 2012, recommending that Petitioner’s
§ 2241 petition [Doc. 1] be dismissed without prejudice and without requiring the Respondent to file
an answer. The Petitioner sought habeas relief, pursuant to 28 U.S.C. § 2241. The Report sets forth
the relevant facts and legal standards which this court incorporates herein without a recitation.
The Magistrate Judge’s Report and Recommendation is made in accordance with 28 U.S.C.
§ 636(b)(1) 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 this court. See 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 and Recommendation to which specific objections are made, and the court
may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation or
recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
The parties were notified of their right to file objections [Doc. 10 at 5]. The Petitioner has
not filed any objections to the Report.

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In the absence of objections to the Magistrate Judge’s Report and Recommendation, 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 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). Furthermore, failure to file specific written objections to the Report and
Recommendation results in a party’s waiver of the right to appeal from the judgment of the District
Court based upon such recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140
(1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th
Cir. 1984).
After a thorough and careful review of the record, the court finds the Magistrate Judge’s
Report provides an accurate summary of the facts and law in the instant case. The court ACCEPTS
the Report of the Magistrate Judge and incorporates it herein by reference. For the reasons set out
in the Report, the § 2241 petition [Doc. 1] is DISMISSED without prejudice and without requiring
the Respondent to file an answer.
CERTIFICATE OF APPEALABILITY
The law governing certificates of appealability 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
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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.
IT IS SO ORDERED.

United States District Judge
Greenville, South Carolina
February 21, 2012

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