United States District Court, D. South Carolina
OPINION AND ORDER
HOWE HENDRICKS UNITED STATES DISTRICT JUDGE.
Degree, (“Petitioner”), proceeding pro
se, filed this application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In accordance
with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C.,
the action was referred to United States Magistrate Judge
Jacquelyn D. Austin for pretrial handling and a Report and
Recommendation (“Report”). Judge Austin
recommends that this action be summarily dismissed as a
successive § 2254 habeas action which seeks to overturn
the same conviction, and which the United States Court of
Appeals for the Fourth Circuit has not authorized. In fact,
the Fourth Circuit denied Petitioner's motion to file a
successive action. (ECF No. 9.) The Report sets forth in
detail the relevant facts and standards of law on this matter
and the Court incorporates them without recitation.
filed this action challenging his conviction of kidnapping
and criminal sexual conduct. On January 26, 2017, the
Magistrate Judge issued a Report (ECF No. 9), and on January
30, 2017, Petitioner filed his Objections (ECF No. 11). The
Court has reviewed the Objections, but finds them to be
without merit. Therefore, it will enter judgment accordingly.
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).
Magistrate Judge found that this action should be dismissed
as an unauthorized, successive § 2254 habeas action
which seeks to overturn the same conviction. Petitioner filed
Objections to the Report, which the Court has carefully
reviewed. Petitioner's filing fails to state a specific
objection or direct the Court to any specific error in the
Magistrate's proposed findings and recommendations.
Rather, Plaintiff's rambling Objections merely rehash
points in his Complaint, or raise new points. The Report
concludes that this Court does not have jurisdiction to
consider Petitioner's successive § 2254 action, and
the Court agrees with the analysis of the Magistrate Judge.
the Court agrees with the cogent analysis by the Magistrate
Judge, and because that analysis evinces no clear error, the
Court need not discuss the same issues for a second time
here. Therefore, the Court overrules Petitioner's
reasons stated above and by the Magistrate Judge, the Court
overrules Petitioner's Objections and adopts and
incorporates by reference the Magistrate Judge's Report
herein. It is therefore ORDERED that Petitioner's §
2254 petition is DISMISSED.
governing law provides that:
(c) (2) A certificate of appealability may issue . . . only
if the applicant has made a substantial showing of the denial