United States District Court, D. South Carolina
F. Anderson, Jr. United States District Judge
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.
Magistrate Judge assigned to this action 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.
petitioner was advised of his right to file objections to the
Report and Recommendation, which was entered on the docket on
January 2, 2019.
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
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).
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
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
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).
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.
petitioner is now free to take an appeal of this order with
the Fourth Circuit Court of Appeals.