Robinson v. McCall
Filing
11
ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant and dismissing the petition without prejudice. It is further ordered that a certificate of appealability is denied. Signed by Honorable Joseph F Anderson, Jr on 6/26/2012.(cwhi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Jermel Anthony Robinson,
Petitioner,
vs.
Michael McCall,
Respondent.
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C/A No.: 9:12-1229-JFA-BM
ORDER
The pro se petitioner, Jermel Anthony Robinson, is a prisoner currently housed at
the Lee Correctional Institution of the South Carolina Department of Corrections. He has
filed a petition pursuant to 28 U.S.C. § 2254 challenging his state court conviction and
sentence.
The Magistrate Judge assigned to this action1 has prepared a thorough Report and
Recommendation and opines that the petition should be dismissed as premature because
petitioner has not exhausted his state remedies. The Report sets forth in detail the
relevant facts and standards of law on this matter, and the court incorporates such without
a recitation.
Petitioner was advised of his right to file objections to the Report and
Recommendation, which was entered on the docket on June 1, 2012. Petitioner, however,
1
The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has no
presumptive weight, and the responsibility to make a final determination remains with the court. Mathews
v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions
of the Report and Recommendation 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 to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).
1
failed to file objections. In the absence of specific objections to the Report of the
Magistrate Judge, this court is not required to given any explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
After carefully reviewing the applicable laws, the record in this case, and the
Report and Recommendation, this court finds the Magistrate Judge’s recommendation
fairly and accurately summarizes the facts and applies the correct principles of law. The
Report is incorporated herein by reference.
Accordingly, the petition is dismissed without prejudice. It is further ordered that
a certificate of appealability is denied because the petitioner has failed to make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).2
IT IS SO ORDERED.
June 26, 2012
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge
2
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) (West 2009). 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. 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 the instant matter, the court finds that the petitioner has failed to make “a substantial showing of the denial
of a constitutional right.”
2
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