Poe v. South Carolina Dept of Corrections
Filing
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ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 13 Motion for Summary Judgment. Petitioner's habeas petitions is DISMISSED without prejudice. Certificate of appealability is denied. Signed by Honorable Richard M Gergel on 1/16/2015.(cwhi, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Richard Keith Pope, #259297,
Petitioner,
vs.
Warden, Evans Correctional Institution,
Respondent.
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No. 9: 14-cv-2909-RMG
ORDER
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This matter comes before the Court on the Report and Recommendation ("R & R") of the
Magistrate Judge (Dkt. No. 18), recommending that Respondent's motion for summary judgment
be granted because Petitioner has not exhausted his state remedies as required under 28 U.S.C.
§ 2254(b). The Magistrate Judge recommended that the dismissal be without prejudice.
Petitioner has filed objections to the R & R, arguing that he should not have to wait for a final
decision of the South Carolina Supreme Court to pursue his federal habeas remedy because
allegedly ineffective counsel deprived him the right to raise claims on direct appeal. (Dkt. No.
20).
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, 270-71 (1976). The Court may "accept, reject, or
modifY, in whole or in part, the findings or recommendations made by the magistrate." 28
U.S.C. § 636(b)(I). This Court is charged with making a de novo determination of those
portions of the R & R to which objection is made. Diamond v. Colonial Life & Ace. Ins. Co.,
416 F.3d 310,315 (4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(l»; accord Fed. R. Civ. P. 72(b).
The Court has reviewed the parties' filings and the R & R, and concludes that the
Magistrate Judge correctly applied the relevant law to the operative facts in this matter. The
Petitioner is required under the present circumstances to exhaust all state court remedies before
filing his federal habeas petition. Therefore, the Court ADOPTS in full the Magistrate Judge's
Report and Recommendation (Dkt. No. 18) as the order of this Court. Accordingly,
Respondent's Motion for Summary Judgment (Dkt. No. 17) is GRANTED. Petitioner's habeas
petitions is DISMISSED without prejudice.
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 (2003); Slackv. 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. Therefore, a certificate of appealability is DENIED.
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IT IS SO ORDERED.
Richard Mark Gergel
United States District J dge
January Jl:s2015
Charleston, South Carolina
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