Upson v. Lewis
ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. Petitioners Petition for a Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE and without requiring Respondent to file a return. Signed by Honorable Mary Geiger Lewis on 8/30/2017.(cwhi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLES EDWARD UPSON,
WARDEN SCOTT LEWIS,
§ CIVIL ACTION NO. 9:17-1406-MGL-BM
ORDER ADOPTING THE REPORT AND RECOMMENDATION
AND DISMISSING PETITIONER’S HABEAS PETITION WITHOUT PREJUDICE
AND WITHOUT REQUIRING RESPONDENT TO FILE A RETURN
This case was filed as a 28 U.S.C. § 2254 action. Petitioner is proceeding pro se. The matter
is before the Court for review of the Report and Recommendation (Report) of the United States
Magistrate Judge suggesting the instant Petition for a Writ of Habeas Corpus be summarily
dismissed without prejudice and without requiring Respondent to file a return. The Report was
made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South
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 the Court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo
determination of those portions of the Report to which specific objection is made, and the Court may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Magistrate Judge filed the Report on August 14, 2017, but Petitioner failed to file any
objections. “[I]n 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). Moreover, a failure to
object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985).
After a thorough review of the Report and the record in this case pursuant to the standard set
forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment
of the Court Petitioner’s Petition for a Writ of Habeas Corpus is DISMISSED WITHOUT
PREJUDICE and without requiring Respondent to file a return.
An order denying relief in a § 2254 proceeding such as this is not appealable unless a circuit
or district judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of
appealability will issue only upon “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). A petitioner satisfies this standard by demonstrating that reasonable jurists
would find that any assessment of the constitutional claims by the district court is debatable or
wrong and that any dispositive procedural ruling by the district court is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The Court has reviewed the petition, the record
and the applicable case law and concludes that Petitioner has failed to make the requisite showing.
Therefore, to the extent that Petitioner requests a certificate of appealability from this Court, that
request is DENIED.
IT IS SO ORDERED.
Signed this 30th day of August, 2017, in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE
NOTICE OF RIGHT TO APPEAL
Petitioner is hereby notified of the right to appeal this Order within thirty days from the date
hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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