United States District Court, D. South Carolina, Florence Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on Petitioner's May 28, 2019
pro se petition filed in this court pursuant to 28 U.S.C.
§2254, challenging her convictions in state court. ECF
No. 1. In accordance with 28 U.S.C. § 636(b) and Local
Civil Rule 73.02 (B)(2)(c), DSC, this matter was referred to
United States Magistrate Judge Thomas E. Rogers, III, for
pre-trial proceedings and a Report and Recommendation
(“Report”). On May 30, 2019, the Magistrate Judge
issued a Report recommending this matter be dismissed as
successive. ECF No. 8. The Magistrate Judge advised
Petitioner of the procedures and requirements for filing
objections to the Report and the serious consequences if she
failed to do so. Petitioner filed objections on June 13,
2019. ECF No. 11.
Magistrate Judge makes only a recommendation to this 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 (1976). The
court is charged with making a de novo determination of those
portions of the Report to which specific objection is made,
and the court may accept, reject, or modify, in whole or in
part, the recommendation of the Magistrate Judge, or recommit
the matter to the Magistrate Judge with instructions. 28
U.S.C. § 636(b)(1). The court reviews only for clear
error in the absence of an objection. See Diamond v.
Colonial Life & Accident 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 a
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 committee's note).
objects to the Report, arguing she does have permission from
the Fourth Circuit to file a successive § 2254. ECF No.
11. In support of this, she attaches the Final Local Rule
40(d) Notice from the Fourth Circuit's ruling on No.
12-6805. ECF No. 11-1 at 1. Petitioner underlined the
statement “[a] petition for writ of certiorari may be
filed in the Office of the Clerk, Supreme Court of the United
States . . . within 90 days of this court's entry of
judgment or, if a timely petition for panel or en banc
rehearing was filed, denial of rehearing.” Id.
She also attaches “newly discovered evidence, ”
which appears to consist of a supplemental police report
dated 11/07/06, and other evidence from the case.
Id. at 3-4. The cover letter of these documents,
from the Seventh Judicial Circuit Public Defender, notes this
copy of Petitioner's file was sent September 25, 2013.
Id. at 2. Finally, she attaches the Appeal
Transmittal Sheet from her most recent appeal in No.
18-cv-1026, with the phrase “Court granted & did
not revoke IFP status (continues on appeal)”
underlined. Id. at 11.
these documents alter the conclusion of the Magistrate Judge
that Petitioner's instant petition is successive. At
best, these documents indicate the Fourth Circuit informed
Petitioner of her right to seek certiorari from the Supreme
Court, not to refile another § 2254 motion in this
to filing a second or successive petition under § 2254,
Petitioner must obtain certification by a panel of the Fourth
Circuit Court of Appeals allowing her to file a second or
successive petition. As provided in 28 U.S.C. § 2244,
“[b]efore a second or successive application permitted
by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order
authorizing the district court to consider the
application.” 28 U.S.C. § 2244(b)(3)(A). This she
has not done. Therefore, this petition is successive in
nature and the court is without jurisdiction to consider it.
Accordingly, after de novo review, the court adopts and
incorporates the Report and Recommendation by reference into
this Order. This matter is dismissed without prejudice and
without requiring Respondent to file a return.
governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if
the applicant has made a substantial showing of the denial of
a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate
which specific issue or issues satisfy the showing required
by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard
by demonstrating that reasonable jurists would find this
court's assessment of his constitutional claims is
debatable or wrong and that any dispositive procedural ruling
by the district court is likewise debatable. See
Miller-El v. Cockrell, reasons. See No. 18-cv-1026
at ECF NO. 18. Petitioner appealed the order dismissing that
case to the Fourth Circuit, which dismissed the appeal.
Id. at ECF No. 28. 537 U.S. 322, 336 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In
this case, the legal standard for the issuance of a
certificate of appealability has not been met. Therefore, a
certificate of appealability is denied.