Woods v. Pate

Filing 10

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. It is therefore ORDERED that Plaintiffs action, (ECF No. 1), be DISMISSED without prejudice. Signed by Honorable J Michelle Childs on 9/20/2017.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Cedric L. Woods,

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Petitioner,
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v.
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John R. Pate,
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Respondent.
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____________________________________)

Civil Action No.: 9:17-01195-JMC

ORDER

Petitioner, proceeding pro se, brought this application for writ of habeas corpus (Petition)
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. 7), filed on July 25, 2017, recommending that
Petitioner’s action, (ECF No. 1), be dismissed without prejudice and without requiring Respondent
to file a return. 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 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, and 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 and Recommendation 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 an objection to the Report “within fourteen (14)
days of the date of service of the Report and Recommendation,” or by August 8, 2017. (ECF No.
7.) Petitioner filed no objections.
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).
After a thorough review of the Report and the record in this case, the court finds the Report
provides an accurate summary of the facts and law and does not contain clear error. The court
ADOPTS the Magistrate Judge’s Report and Recommendation (ECF No. 7). It is therefore
ORDERED that Plaintiff’s action, (ECF No. 1), be DISMISSED without prejudice.
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. 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 Judge
September 20, 2017
Columbia, South Carolina