Brown v. Bush
ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. It is therefore ORDERED that action is DISMISSED without prejudice and without requiring Respondent to file a return. Certificate of appealability is denied. Signed by Honorable Mary G Lewis on 6/9/2014.(cwhi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Vernon Samuel Brown, a/k/a Vernon S.
Brown, a/k/a Vernon Brown, #303575,
) Civil Action No.:9:13-3376-MGL
OPINION AND ORDER
On, Petitioner Vernon Samuel Brown, a/k/a Vernon S. Brown, a/k/a Vernon Brown,
(“Petitioner”), an inmate in the South Carolina Department of Corrections (“SCDC”) and
housed at the Lee Correctional Institution in Bishopville, South Carolina filed two petitions,
one pursuant to 28 U.S.C. § 2241 and another pursuant to 28 U.S.C. § 2254, asking that
his SCDC disciplinary conviction be overturned. (ECF No. 1.) 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 24, 2014, the Magistrate Judge issued a Report and Recommendation
recommending that the court dismiss the instant Petitions for a Writ of Habeas Corpus
without prejudice and without requiring Respondent to file a return due to Petitioner’s failure
to fully exhaust his remedies with SCDC or his state court remedies. (ECF No. 11). 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.
Id. at 7. Plaintiff has filed no objections and the time for doing so expired on May 12, 2014.
The Magistrate Judge makes only a recommendation to this court.
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). 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).
In light of the standard set forth above, the court has carefully reviewed the record
for clear error. Finding no clear error, the court adopts and incorporates the Report and
Recommendation (ECF No. 11) by reference into this order. It is therefore ORDERED that
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, 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
IT IS SO ORDERED.
/s/ Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
June 9, 2014
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?