Gonzalez v. Eagleton

Filing 37

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 24 Motion for Summary Judgment and DISMISSING the habeas petition without prejudice. A certificate of appealability is DENIED. Signed by Honorable Richard M Gergel on 10/19/2016.(cwhi, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Carlos Gonzalez, a/k/a Carolos Conzales,

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Petitioner,

No.: 9: 15-cv-3386-RMG

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vs.
Warden Willie L. Eagleton,
Respondent.

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ORDER

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This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge (Dkt. No. 35), recommending that the Court grant Petitioner's request to
dismiss this action without prejudice (Dkt. No. 34). For the reasons stated below, the Court
ADOPTS the R & R and DISMISSES the habeas petition.

Petitioner filed his petition for writ of habeas corpus pursuant to 28 U.S.c. § 2254 on
August 21,2015. (Dkt. No.1). Respondent moved for summary judgment on several grounds,
including that the petition was successive and that Petitioner had failed to seek permission from
the Fourth Circuit prior to its filing. (Dkt. No. 24). Petitioner replied to the motion for summary
judgment on September 16, 2016. (Dkt. No. 34). In his response, he conceded that this Court
lacked jurisdiction because he had not received permission from the Fourth Circuit to file a
successive petition, and he requested that the Court dismiss his petition without prejudice so that
he could request permission from the Fourth Circuit to properly file a successive petition.
On September 19, 2016, the Magistrate Judge issued an R & R recommending that the
Court grant Petitioner's request. (Dkt. No. 35). No objections have been filed.
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)(1). A District Court must "make a de novo determination of those portions of
the report ... or recommendations to which objection is made." 28 U.S.C. § 636(b)(l). Where
no timely filed objection has been made, the District Court is obligated to review the R & R to
confirm that "there is no clear error on the face of the record in order to accept the
recommendation." Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,315 (4th Cir.
2005).
Having fully consider the R & R, the record, and the relevant legal standards, the Court
finds that the Magistrate Judge ably and accurately set forth the legal and factual issues in this
matter and correctly concluded that Petitioner's claims are not cognizable on habeas review and
that his request should be granted. Therefore, the Court ADOPTS the R & R (Dkt. No. 35) as
the order of this Court and DISMISSES the habeas petition 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 ofthe 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); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,

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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.
AND IT IS SO ORDERED.

Richard Mar Gergel
United States District Court Judge
October I~ 2016
Charleston, South Carolina

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