Jacobs v. McCall

Filing 31

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. It is therefore ORDERED that Petitioners action be dismissed with prejudice for lack of prosecution. Signed by Honorable J Michelle Childs on 7/17/2014.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Tyco Tyrone Jacobs,
a/k/a Tyrone T. Jacobs,
# 328542,

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Petitioner,
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v.
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Warden McCall
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Respondent.
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____________________________________)

Civil Action No. 9:13-02910-JMC

ORDER

Petitioner, proceeding pro se, brought this action seeking relief pursuant to 28 U.S.C. §
2254.

This matter is before the court for review of the magistrate judge’s Report and

Recommendation (“Report”), [ECF No. 29], filed on June 26, 2014, recommending that
Petitioner’s action be dismissed with prejudice for lack of prosecution. The Report sets forth in
detail the relevant facts and legal standards on this matter, and the court incorporates the
magistrate judge’s recommendation herein without a recitation.
The magistrate judge’s Report 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 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).
Petitioner was advised of his right to file objections to the Report. [ECF No. 29-3].
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However, Plaintiff filed no objections to the Report.
In the absence of objections to the magistrate judge’s Report, 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 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).
Therefore, after a thorough and careful review of the Report and the record in this case,
the court finds the Report provides an accurate summary of the facts and law. The court
ADOPTS the magistrate judge’s Report and Recommendation [ECF No. 29]. It is therefore
ORDERED that Petitioner’s action be dismissed with prejudice for lack of prosecution.
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
dispositive procedural ruling by the district court is likewise debatable.

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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 Court Judge
July 17, 2014
Columbia, South Carolina

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