United States District Court, D. South Carolina, Charleston Division
Hayward L. Rogers, #578210, Petitioner,
Larry Cartledge, Warden, Respondent.
OPINION & ORDER
Timothy M. Cain United States District Judge
matter is before the court on Petitioner Hayward L.
Rogers' (“Rogers”) petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. (ECF No.1).
In accordance with 28 U.S.C. § 636(b) and Local Rule
73.02(B)(2), D.S.C., all pre-trial proceedings were referred
to a magistrate judge. Magistrate Judge Mary Gordon Baker
filed a Report and Recommendation (“Report”)
recommending Petitioner's petition be summarily dismissed
without prejudice and without issuance and service of
process. (ECF No. 7). Rogers was advised of his right to file
objections to the Report. (ECF No. 7 at 10), and he filed
timely objections. (ECF No. 12).
Magistrate Judge makes only a recommendation to the 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, 270-71
(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). However, the court need not
conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the Magistrate
Judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
Report, the Magistrate Judge summarized Roger's criminal
history and previous filings with this court (Report at 2-5).
The Magistrate Judge noted that Rogers has filed nine federal
habeas petitions in which he has attempted to challenge his
2001 state convictions. After reviewing the instant petition,
the Magistrate Judge concluded that, although Rogers contends
he is proceeding with a habeas petition under 28 U.S.C.
§ 2241, the petition is actually a petition pursuant to
§2254 in which Rogers seeks to challenge his 2001
convictions. (Report at 5-6). Further, the Magistrate Judge
noted that because Rogers has not obtained permission from
the Fourth Circuit Court of Appeals to file a successive
habeas § 2254 petition, this court lacks jurisdiction
and the petition should be dismissed. (Report at 7).
objections, Rogers generally argues that the Magistrate Judge
erred by not addressing his claims on the merits. Further, he
contends that because he is filing a § 2241 petition
that he does not need prior authorization for the Fourth
Circuit Court of Appeals.
Magistrate Judge is correct in her opinion that the claims
raised in this § 2241 petition are actually successive
§ 2254 challenges to Rogers' 2001 conviction. As
Rogers has not received permission from the Fourth Circuit
Court of Appeals to file a successive § 2254 petition,
this court is without authority to entertain it. See
28 U.S.C. § 2244 and United States v.
Winestock, 340 F.3d 200, 205 (4th Cir. 2003) (“In
the absence of pre-filing authorization, the district court
lacks jurisdiction to consider an application containing
abusive or repetitive claims.”)
thorough review of the Report and the record in this case
pursuant to the standards set forth above, the court finds
Roger's objections are without merit and adopts the
Report. Accordingly, Rogers' petition is summarily
DISMISSED without prejudice and without
issuance and service of process.
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 his 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 Petitioner has failed to make
"a substantial showing of the denial of a constitutional
right." Accordingly, the court declines to issue a
certificate of appealability.
IS SO ORDERED.
The Magistrate Judge also noted that
Rogers has attempted on multiple occasions to challenge his
2001 convictions by filing complaints pursuant to 42 U.S.C.