Austin v. Ham et al

Filing 17

ORDER adopting 15 Report and Recommendation of Magistrate Judge Bristow Marcahnt dismissing this action without prejudice and without requiring respondent to file a return. A certificate of appealability is denied. Signed by Honorable Mary G Lewis on 4/29/13.(hhil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
) Civil Action No.: 9:13-536-MGL
)
Petitioner, )
)
v.
)
OPINION AND ORDER
)
Warden Knowlin,
)
)
Respondent. )
_______________________________________ )
Willie Cornelius Austin,

Pro se Petitioner Willie Cornelius Austin (“Petitioner”), a state inmate currently serving his
sentence at Turbeville Correctional Institution in Turbeville, South Carolina, filed this habeas relief
action pursuant to 28 U.S.C. § 2241. (ECF No. 1). In his Petition, Petitioner requests that his maxout date be modified. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(c), D.S.C., this matter was referred to United States Magistrate Judge Bristow Marchant
for pre-trial proceedings and a Report and Recommendation (“Report”).
On March 21, 2013, Magistrate Judge McCrorey issued a Report and Recommendation
recommending inter alia that the court dismiss Petitioner's petition without prejudice and without
issuance and service of process because Petitioner failed to exhaust his administrative remedies.
(ECF No. 15.) The Magistrate Judge advised Plaintiff of the procedures and requirements for filing
objections to the Report and Recommendation and the serious consequences if he failed to do so.
(ECF No. 15 at 10.) Plaintiff has filed no objections and the time for doing so expired on April 8,
2013.
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.
See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged

with making a de novo determination of any portion of the Report and Recommendation of the
Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify,
in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to
the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). The court reviews the Report and
Recommendation only for clear error in the absence of an objection. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “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.”) (citation
omitted).
After a careful review of the record, the applicable law, and the Report and
Recommendation, the court finds the Magistrate Judge's recommendation to be proper.
Accordingly, the Report and Recommendation (ECF No. 15) is incorporated herein by reference and
this action is DISMISSED without prejudice and without requiring respondent to file a return.
Certificate of Appealability
The governing law 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 the standard by demonstrating that reasonable jurists
would find this court's assessment of his constitutional claims debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. See Miller–El v. Cockrell,
537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484,

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120 S.Ct. 1595, 146 L.Ed.2d 542 (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. Therefore,
a certificate of appealability is DENIED.
IT IS SO ORDERED.
/s/ Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
April 29, 2013

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