United States District Court, D. South Carolina, Charleston Division
Samuel A. Wilder, Petitioner,
Charles Williams, Warden, Respondent.
OPINION AND ORDER
Cameron McGowan Currie, Senior United States District Judge.
matter is before the court on Petitioner's May 15, 2019
pro se petition filed in this court pursuant to 28 U.S.C.
§2254, challenging his convictions in state court;
specifically, he complains a motion for new trial he filed in
2006 has not been decided. 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 Mary Gordon Baker for pre-trial proceedings and a
Report and Recommendation (“Report”). On May 28,
2019, the Magistrate Judge issued a Report recommending this
matter be dismissed as successive. ECF No. 6. The Magistrate
Judge advised Petitioner of the procedures and requirements
for filing objections to the Report and the serious
consequences if he failed to do so. Petitioner filed
objections on June 19, 2019. ECF No. 10.
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, requesting the court “stop the
Due Process violation that has occurred over the years and is
occurring right now, and will continue if this Court
don't act.” ECF No. 10 at 1 (errors in original).
Petitioner argues he will have no way to “attack his
conviction or sentenced [sic]” if this court does not
act. Id. at 2.
court is unable to act on this Petition as filed, because it
is successive and unauthorized. In fact, it appears
Petitioner filed a Motion under 28 U.S.C. § 2244 in the
Fourth Circuit, seeking permission to file a § 2254
motion in this court regarding the state court's failure
to act on his motion for new trial. That motion was denied by
the Fourth Circuit. See No. 16-528 at ECF No. 4 (4th Cir. May
to filing a second or successive petition under § 2254,
Petitioner must obtain authorization by a panel of the Fourth
Circuit Court of Appeals allowing him to file a second or
successive petition. This he has failed to do. 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, 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.