United States District Court, D. South Carolina, Charleston Division
BRYAN HARWELL UNITED STATES DISTRICT JUDGE
Carolynn Elizabeth Wood, a non-prisoner proceeding pro se,
has filed a petition for a writ of habeas corpus.
See ECF No. 1. The matter is before the Court for
consideration of Petitioner's objections to the Report
and Recommendation (“R & R”) of United States
Magistrate Judge Mary Gordon Baker,  who recommends summarily
dismissing the petition, denying a certificate of
appealability, and denying her motion to seal and motion for
discovery. See ECF Nos. 9 & 16.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's 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); Fed.R.Civ.P. 72(b).
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
February 6, 2018, Petitioner filed her habeas petition-in
person at the Columbia courthouse-challenging her involuntary
civil commitment that was imposed by state probate court in
March 2017 and lasted six days. See ECF No. 1. The
Magistrate Judge recommends summarily dismissing the
petition. See R & R at pp. 1, 17. Although
Petitioner lodges various objections to the R & R,
see ECF No. 16, the Court agrees with the Magistrate
Judge that Petitioner is not entitled to relief for a simple
reason: she was not in custody when she filed her petition.
See R & R at pp. 6-10.
the Court notes that although Petitioner purported to file
her habeas petition “under 28 U.S.C. § 2254”
(and the Magistrate Judge analyzed it under § 2254),
see ECF No. 1 at p. 1, it is properly construed as a
petition under 28 U.S.C. §
2241. See Muhammad v. Geo Care
Justcare Dep't of Mental Health, No.
3:11-cv-02396-CMC, 2011 WL 5827627, at *1 (D.S.C. Nov. 16,
2011) (“Where the impediment which significantly
restrains Petitioner's liberty is not the result of a
state criminal conviction and sentence, such as in the
circumstance of . . . involuntary civil commitment of mental
evaluation/treatment areas, the federal habeas corpus statute
to be applied is 28 U.S.C. § 2241.”),
aff'd, 472 Fed.Appx. 160 (4th Cir. 2012);
see also Miller v. Blalock, 356 F.2d 273 (4th Cir.
1966) (involuntary commitment for mental treatment);
Gaster v. S.C. Dep't of Corr., 67 Fed.Appx. 821,
2003 WL 21465454, at n.* (4th Cir. 2003) (“Although
Gaster originally filed the petition under 28 U.S.C. §
2254, because he challenged the constitutionality of a state
civil commitment, the magistrate judge properly characterized
it as a petition under 28 U.S.C. §
§ 2241 (like § 2254) requires that the applicant be
“in custody” when she files the petition. 28
U.S.C. § 2241(c); see Preiser v. Rodriguez, 411
U.S. 475, 484 (1973) (“It is clear, not only from the
language of §§ 2241(c)(3) and 2254(a), but also
from the common-law history of the writ, that the essence of
habeas corpus is an attack by a person in custody upon the
legality of that custody, and that the traditional function
of the writ is to secure release from illegal
custody.”); see also Maleng v. Cook, 490 U.S.
488, 490-91 (1989); Timms v. Johns, 627 F.3d 525,
530 (4th Cir. 2010); Dragenice v. Ridge, 389 F.3d
92, 98 (4th Cir. 2004). If the applicant is not in custody,
the Court lacks jurisdiction over the habeas petition and
must dismiss it. See Bernard v. Garraghty, 934 F.2d
52, 53-54 (4th Cir. 1991) (“Federal courts may only
take jurisdiction over a petition for a writ of habeas corpus
when the [applicant] is ‘in custody in violation of the
Constitution or laws or treaties of the United States.'
28 U.S.C. §§ 2241(c)(3), 2254(a).”).
Petitioner was not in custody at the time she filed her
habeas petition. When she filed it-in person at the Columbia
courthouse in February 2018-she had been released from her
brief civil commitment nearly a year earlier and had a North
Carolina address. Accordingly, the Court lacks jurisdiction
over her habeas petition and must dismiss it.
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 Fed.Appx. 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
upon the foregoing, the Court overrules Petitioner's
objections and adopts as modified the Magistrate Judge's
R & R [ECF No. 9] to the extent it is consistent with
this Order. Accordingly, the Court DISMISSES
Petitioner's habeas petition without prejudice.
The Court DENIES a certificate of
appealability because Petitioner has not made “a
substantial showing of the denial of a constitutional
right” under 28 ...