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Dawson v. Warden, Broad River Correctional Institution

United States District Court, D. South Carolina

March 4, 2019

Russell Dawson, Petitioner,
v.
Warden, Broad River Correctional Institution, Respondent.

          ORDER

          Joseph F. Anderson, Jr. United States District Judge

         The pro se petitioner, Russell Dawson, brings this action pursuant to 28 U.S.C. § 2254 challenging his 1990 state court jury conviction for armed robbery.

         The Magistrate Judge assigned to this action[1] has prepared a thorough Report and Recommendation wherein she opines that the petition is successive and that the petitioner has not received permission from the Fourth Circuit Court of Appeals to file a successive § 2254 petition. The Magistrate Judge further notes that the petitioner has previously brought four habeas challenges in this District concerning his state conviction. The Report sets forth in detail the relevant facts and standards of law on this matter, and the court incorporates such without a recitation.

         The petitioner was advised of his right to file objections to the Report and Recommendation, which was entered on the docket on January 2, 2019.

         On February 13, 2019, more than three weeks past the deadline to file objections to the Report, the petitioner filed a document entitled “Notice of Appeal” to the Fourth Circuit Court of Appeals, and the Clerk docketed the document as an “Objection.” The petitioner also filed a motion to appoint counsel “in this appeal.”

         The petitioner has not filed specific objections to the Report and the time within which to do so has expired. In the absence of specific objections to the Report of the Magistrate Judge, this court is not required to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

         Moreover, as the petitioner 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. 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.”)

         After a careful review of the record, the applicable law, and the Report and Recommendation, the court finds that the Magistrate Judge's recommendation is proper and it is incorporated herein by reference. Accordingly, this action is dismissed without prejudice and without issuance and service of process.

         IT IS FURTHER ORDERED that a certificate of appealability is denied because the petitioner has failed to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).[2]

         The petitioner's “Notice of Appeal” was premature before this court because the court had not yet issued a final order on the Recommendation of the Magistrate Judge. In addition, the motion for appointment of counsel before this court is now moot.

         The petitioner is now free to take an appeal of this order with the Fourth Circuit Court of Appeals.

         IT IS SO ORDERED.

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