Mingo v. Bragg
Filing
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ORDER adopting 17 Report and Recommendation of Magistrate Judge Bristow Marchant. After a careful and thorough review of the record under the appropriate standards, as set forth above, the court adopts the Report 17 to the extent that it recommends that the Petition be dismissed for lack of jurisdiction, and incorporates the Report herein by reference. Accordingly, for the reasons stated in the Report, the Motion to Dismiss 10 is GRANTED and the Petition is DISMISSED without prejudice for lack of jurisdiction. Signed by Honorable Timothy M Cain on 12/26/2018. (hada, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Kemuel Cornelious Mingo,
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Petitioner,
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C/A No. 9:18-cv-1333-TMC
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vs.
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ORDER
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M. Travis Bragg,
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Warden, FCI Bennetsville,
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Respondent.
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__________________________________________)
The Petitioner, Kemuel Cornelious Mingo, proceeding pro se, brings this action pursuant
to 28 U.S.C. § 2241 for habeas relief. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02(B) D.S.C., this matter was referred to a magistrate judge for pretrial handling.
Respondent filed a motion to dismiss (ECF No. 10), and Petitioner responded (ECF No. 17). On
October 4, 2018, the court ordered Respondent to file a reply brief. (ECF No. 20). Respondent
replied on October 18, 2018. (ECF No. 23). Before the court is the magistrate judge’s Report and
Recommendation (“Report”), recommending that the Petition be dismissed without prejudice for
lack of jurisdiction. (ECF No. 25). The magistrate judge alerted Petitioner of his right to file
objections to the Report. Id. at 9. Petitioner filed a motion for an extention of time to file his
objections (ECF No. 27), and the court granted the motion (ECF No. 28). However, despite the
extension of time, Petitioner has failed to file any objections, and the time to do so has now run.
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–
71 (1976). In the absence of objections, this court is not required to provide an explanation for
adopting the Report. 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
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accept the recommendation.” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
After a careful and thorough review of the record under the appropriate standards, as set
forth above, the court adopts the Report (ECF No. 17) to the extent that it recommends that the
Petition be dismissed for lack of jurisdiction, and incorporates the Report herein by reference.
Accordingly, for the reasons stated in the Report, the Motion to Dismiss (ECF No. 10) is
GRANTED and the Petition is DISMISSED without prejudice for lack of jurisdiction.
A certificate of appealability will not issue absent “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find both that this constitutional claims are debatable
and that any dispositive procedural rulings by the district court are also debatable or wrong. See
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001).
In the instant matter, the court finds that the Petitioner failed to make a “substantial showing of
the denial of a constitutional right.” Accordingly, the court declines to issue a certificate of
appealability.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
December 26, 2018
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