United States District Court, D. South Carolina, Florence Division
Philip D. Smith, Petitioner,
Warden, FCI Williamsburg, Respondent.
Bryan Harwell United States District Judge
Philip D. Smith, a federal prisoner proceeding pro se, has
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241. See ECF No. 1. The matter is
before the Court for review of the Report and Recommendation
(R & R) of United States Magistrate Judge Thomas E.
Rogers, III. See R & R [ECF No. 15]. The
Magistrate Judge recommends that the Court summarily dismiss
Petitioner's § 2241 petition with prejudice and
without requiring Respondent to file a return. R & R at
Magistrate Judge makes only a recommendation to the Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The Court must conduct a de novo review of those
portions of the R & R to which specific objections are
made, and it 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).
has not filed objections to the R & R, and the time for
doing so has expired. In the absence of objections to the R
& R, the Court is not required to give any explanation
for adopting the Magistrate Judge's recommendations.
See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983). The Court reviews only for clear error in the absence
of an objection. See Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating
that “in the absence of a timely filed objection, a
district court need not conduct 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'” (quoting Fed.R.Civ.P. 72 advisory
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). The Fourth Circuit
has held that a district court's order denying relief on
a petition pursuant to 28 U.S.C. § 2241 is not
appealable unless a circuit justice or judge issues a
certificate of appealability. See, e.g., Garvin
v. Wright, 583 F. App'x 287 (4th Cir. 2014) (citing
28 U.S.C. § 2253(c)(1)(A)). When the district court
denies relief on the merits, a prisoner satisfies this
standard by demonstrating that reasonable jurists would find
that the court's assessment of the constitutional claims
is debatable or wrong. Slack v. McDaniel, 529 U.S.
473, 484 (2000); see also Miller-El v. Cockrell, 537
U.S. 322, 336-38 (2003). When the district court denies
relief on procedural grounds, the prisoner must demonstrate
(1) the dispositive procedural ruling is debatable and (2)
the petition states a debatable claim of the denial of a
constitutional right. Slack, 529 U.S. at 484-85.
Here, the Court concludes that Petitioner has failed to make
the requisite showing of “the denial of a
reviewed the record for clear error, the Court adopts and
incorporates by reference the Magistrate Judge's R &
R [ECF No. 15] except for the recommendation that the
dismissal be with prejudice. Accordingly, the Court
DISMISSES Petitioner's § 2241
petition without prejudice and without requiring
Respondent to file an answer or return. The Court
DENIES a certificate of appealability
because Petitioner has failed to make “a substantial
showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
IS SO ORDERED.
 This matter was referred to the
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and Local Rule 73.02(B)(2)(c) for the District of South
 Petitioner's objections to the R
& R were originally due by October 20, 2017. See
ECF Nos. 15 & 16. After Petitioner filed a motion seeking
a thirty-day extension to file objections, the Court granted
the motion and extended the deadline for filing objections to
November 20, 2017. See ECF Nos. 17 & 19.
Petitioner still has not filed objections.
 The Court lacks jurisdiction over
Petitioner's § 2241 petition and therefore must
dismiss it without prejudice.
Significantly, the Magistrate Judge concluded (correctly)
that Petitioner failed to satisfy the second prong of In
re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) because
he “fails to demonstrate that the conduct for which
[he] was convicted has been deemed non-criminal by any
substantive law change since his criminal conviction was
finalized or since the filing of his § 2255
motions.” R & R at p. 5. The Fourth Circuit has
recognized that such circumstances require a § 2241
petition be dismissed without prejudice. See
Rice v. Rivera, 617 F.3d 802, 807-08 (4th Cir. 2010)
(holding a district court lacked jurisdiction over a §
2241 petition because the petitioner did not satisfy the
second prong of the Jones rule); see, e.g.,
Redd v. Wilson, No. 17-7266, 2017 WL 5626011 (4th
Cir. Nov. 21, 2017) (“Redd has failed to satisfy his
burden of demonstrating that 28 U.S.C. § 2255 (2012) is
an inadequate or ineffective means of challenging the
validity of his detention. See Rice v. Rivera, 617
F.3d 802, 807 (4th Cir. 2010); United States v.
Poole, 531 F.3d 263, 267 n.7 (4th Cir. 2008). The
district court lacked jurisdiction over Redd's petition,
Rice, 617 F.3d at 807, and we therefore . . . ...