United States District Court, D. South Carolina, Orangeburg Division
the court for review is the Magistrate Judge's Report and
Recommendation (“Report”) filed on April 8, 2019
(ECF No. 29). The court ACCEPTS the
Magistrate Judge's Report and incorporates it herein by
reference. For the reasons set out in the Report, the court
GRANTS Respondent Hector Joyner's Motion
to Dismiss (ECF No. 21) and DISMISSES
without prejudice Petitioner Marcus Timothy
Simmons' Petition for Writ of Habeas Corpus (ECF No. 1)
for lack of jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
Report sets forth the relevant facts and legal standards,
which this court incorporates herein without a full
recitation. (ECF No. 29 at 1-4.) As brief background, on June
18, 2018, Petitioner, proceeding pro se, filed a Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2241, arguing
that his prior Tennessee state conviction no longer qualifies
as a predicate offense for the career-offender sentencing
enhancement under the United States Sentencing Guidelines.
(ECF No. 1 at 8.) On September 12, 2018, Respondent filed a
Motion to Dismiss for lack of jurisdiction. (ECF No. 21.) On
September 17, 2018, the Magistrate Judge entered a
Roseboro order, advising Petitioner of the motion
to dismiss procedures and the consequences of failing to
adequately respond. (ECF No. 22.) On September 27, 2018,
Petitioner filed a Response to Respondent's Motion. (ECF
April 8, 2019, the Magistrate Judge entered her Report. (ECF
No. 29.) The Report recommends granting Respondent's
Motion (ECF No. 21) and dismissing Petitioner's Habeas
Petition (ECF No. 1) because
the [United States Court of Appeals for] the Sixth Circuit
has found that a conviction for aggravated reckless assault
under the Tennessee statute at issue qualifies as a crime of
violence under the Federal Sentencing Guidelines[.]
[Therefore, ] the undersigned finds Petitioner cannot show
that his sentence presents an error sufficiently grave to be
deemed a fundamental defect. Because Petitioner has not shown
that § 2255 is inadequate or ineffective to test the
legality of his sentence, the court does not have
jurisdiction to address his claims.
(Id. at 7-8.)
STANDARD OF REVIEW
Magistrate Judge's Report and Recommendation is made in
accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02 for the District Court of South Carolina. The
Magistrate Judge only makes a recommendation to this court;
the responsibility to make a final determination remains with
this court. See Mathews v. Weber, 423 U.S. 261,
270-71 (1976). This court engages in a de novo review of
those portions of the Report and Recommendation to which the
parties have made specific objections. See 28 U.S.C.
§ 636(b)(1). See also Fed. R. Civ. P. 72(b)(3).
The court may accept, reject or modify, in whole or in part,
the Magistrate Judge's recommendation or recommit the
matter with instructions. See 28 U.S.C. §
April 8, 2019, as part of the Report, the Magistrate Judge
notified the parties of their right to file objections by
April 22, 2019. (ECF No. 29 at 9.) Neither of the parties
filed any objections to the Report by this date. In the
absence of objections to the Magistrate Judge's Report,
this court is not required to provide an explanation for
adopting the recommendations without modification. See
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Absent objections, the court must only ensure that there is
no clear error on the face of the record in order to accept
the recommendations. Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting
Fed.R.Civ.P. 72 advisory committee's note). If a party
fails to file specific, written objections to the Report, the
party forfeits the right to appeal the court's decision
concerning the Report. 28 U.S.C. § 636(b)(1); Thomas
v. Arn, 474 U.S. 140 (1985); United States v.
Schronce, 727 F.2d 91 (4th Cir. 1984). Accordingly,
since none of the parties filed any objections to the Report,
and the court observes no clear error on the face of the
record, the court accepts the Magistrate Judge's Report.
See Diamond, 416 F.3d at 315; Camby, 718
F.2d at 199.
thorough and careful review of the record, the court finds
the Magistrate Judge's Report and Recommendation provides
an accurate summary of the facts and law in this case.
Accordingly, the court ACCEPTS the
Magistrate Judge's Report and Recommendation (ECF No. 29)
and incorporates it herein by reference. For the reasons set
out in the Report, the court GRANTS
Respondent Hector Joyner's Motion to Dismiss (ECF No. 21)
and DISMISSES without prejudice
Petitioner's Petition for Writ of Habeas Corpus (ECF No.
1) for lack of jurisdiction.