United States District Court, D. South Carolina, Anderson/Greenwood Division
Bryan Harwell United States District Judge
Rafael Pena-Gonell, proceeding pro se, commenced this action
by filing a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. See ECF No. 1. Respondent has
filed a motion to dismiss, or alternatively, for summary
judgment. See ECF No. 22. The matter is before the
Court for review of the Report and Recommendation (“R
& R”) of United States Magistrate Judge Jacquelyn
D. Austin. See ECF No. 32. The Magistrate
Judge recommends that the Court grant Respondent's motion
for summary judgment and deny Petitioner's § 2241
petition. R & R at pp. 1, 23.
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);
party has 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
thorough review of the record in this case, the Court finds
no clear error and therefore adopts and incorporates by
reference the Magistrate Judge's R & R [ECF No. 32].
Accordingly, the Court GRANTS
Respondent's motion for summary judgment [ECF No. 22] and
DENIES AND DISMISSES Petitioner's §
2241 petition with prejudice. 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.
 The Magistrate Judge notes that
Petitioner was sentenced to 168 months' imprisonment by
the U.S. District Court for the Eastern District of
Pennsylvania and that his projected release date was December
25, 2017. See R & R at p. 2 & n.1.
Significantly, the online records of the Federal Bureau of
Prisons (“BOP”) indicate Petitioner was released
on December 22, 2017. See BOP Inmate Locator,
https://www.bop.gov/mobile/findinmate/ (accessed on February
13, 2018) (search for Petitioner's inmate number
“61426-066”); see, e.g., United
States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008)
(citing the BOP Inmate Locator). However, Petitioner was also
sentenced to five years of supervised release upon release
from imprisonment, see United States v. Rafael
Pena-Gonell, Crim. No. 2:08-cr-00264-JS, at ECF No. 119
(E.D.Pa.) (Petitioner's criminal judgment), and therefore
his § 2241 petition does not appear to be moot.
 This matter was referred to the
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and Local Civil Rule 73.02(B)(2)(c) (D.S.C.).
 Petitioner's objections were due
by January 29, 2018. See ECF Nos. 32 &