United States District Court, D. South Carolina, Beaufort Division
ORDER AND OPINION
Clifton Davis (“Petitioner”), proceeding pro se
and in forma pauperis, brings this Petition for Writ
of Coram Nobis alleging various constitutional violations and
“fraud on the court”. (ECF No. 1). Petitioner is
currently incarcerated at the Tuberville Correctional
Institution within the South Carolina Department of
Corrections (“SCDC”). Petitioner requests that
this court vacate his convictions and sentences for
distribution of crack cocaine and distribution of crack
cocaine within proximity of school imposed upon him by the
Marion County, South Carolina, Court of General Sessions.
(ECF No. 1 at 10).
matter is before the court pursuant to 28 U.S.C. §
1915(e)(2)(B), which requires the court to dismiss civil
actions filed in forma pauperis if they are
frivolous or fail to state a claim upon which relief can be
granted. In accordance with 28 U.S.C. § 636(b) and Local
Civil Rule 73.02, D.S.C., the matter was referred to United
States Magistrate Judge Bristow Marchant for a Report and
Recommendation. On January 27, 2016, the Magistrate Judge
issued a Report and Recommendation (“Report”)
recommending the court dismiss the Petition without prejudice
and without requiring the Respondent to file a return because
this court is not the appropriate venue for such a petition.
(ECF No. 14). The Report sets forth the relevant facts and
legal standards, which this court incorporates herein without
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. The recommendation has no
presumptive weight. The responsibility to make a final
determination remains with this court. See Matthews v.
Weber, 423 U.S. 261, 270-71 (1976). This court is
charged with making a de novo determination of those
portions of the Report 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).
to a Report and Recommendation must specifically identify
portions of the Report and the basis for those objections.
Fed.R.Civ.P. 72(b). “[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, 316
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
committee’s note). Failure to timely file specific
written objections to a Report will result in a waiver of the
right to appeal from an Order from the court based upon the
Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn,
474 U.S. 140, 155 (1985); Wright v. Collins, 766
F.2d 841 (4th Cir. 1985); United States v. Schronce,
727 F.2d 91, 94 (4th Cir. 1984). If the petitioner fails to
properly object because the objections lack the requisite
specificity, then de novo review by the court is not
was notified of his right to file objections to the Report.
(ECF No. 14 at 6). Petitioner was required to file objections
by February 16, 2016. To date, Petitioner has not filed any
objections to the Magistrate Judge’s Report.
Accordingly, this court has reviewed the Report and does not
find clear error. Petitioner filed this coram nobis action in
federal court seeking relief from a sentence imposed by a
South Carolina state court. (ECF No. 1 at 1). The Magistrate
Judge properly determined that coram nobis actions have been
abolished in federal civil cases such as this one. (ECF No.
14 at 2-3 citing Bereano v. United States, 706 F.3d
568, 576 n. 8 (4th Cir. 2013) (noting that the adoption of
Fed.R.Civ.P. 60(b) abolished the writ of coram nobis in civil
cases)). Further, even if coram nobis actions were still
cognizable in such a case, the Magistrate Judge properly
noted that federal court is not the proper venue for a coram
nobis action based on a judgment entered in a state court.
(See ECF No. 14 at 3 citing Thomas v.
Cunningham, 335 F.2d 67, 69 (4th Cir. 1964)). Finally,
this court finds the Magistrate Judge properly concluded that
to the extent this coram nobis action is an attempt to obtain
habeas relief, this court does not have jurisdiction to
review the claim. As noted in the Report, this is
Petitioner’s third petition for relief from the
aforementioned convictions, and there is no indication that
Petitioner sought permission from the United States Court of
Appeals for the Fourth Circuit to file this petition.
(See ECF No. 14 at 3-4).
on the aforementioned reasons and a thorough review of the
Report of the Magistrate Judge and the record in this case,
the court ADOPTS the Report of the Magistrate Judge (ECF No.
14). It is therefore ordered that this Petition (ECF No. 1)
is DISMISSED with prejudice and without requiring Respondent
to file a return.
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). ...