United States District Court, D. South Carolina, Beaufort Division
James A. McClellan, Petitioner,
Warden of Perry Correctional Institution, Respondent.
ORDER AND OPINION
James A. McClellan, proceeding pro se and in
forma pauperis, filed for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 (“Habeas Petition”) (ECF
No. 1.) The matter before the court is a review of the Report
and Recommendation (“Report”) issued by the
Magistrate Judge on July 12, 2019. (ECF No. 9.) For the
following reasons, the court ACCEPTS the
Magistrate Judge's Report (ECF No. 9) and
DISMISSES Petitioner's Writ of Habeas
Corpus (ECF No. 1).
FACTUAL AND PROCEDURAL BACKGROUND
Report sets forth the relevant facts and legal standards,
which this court incorporates herein without a full
recitation. (ECF No. 9 at 1-5.) Petitioner is currently
incarcerated at the Perry Correctional Institution serving a
life sentence after his conviction for first-degree burglary,
SC Code § 16-3-910 (2012), and kidnapping, SC Code
§ 16-11-311 (2012). (ECF Nos. 1 at 1; 9 at 2.)
October 26, 2006, Petitioner filed a Habeas Petition against
the acting warden of McCormick Correctional Institution.
See McClellan v. Cartledge, C/A No.
9:06-cv-03057-PMD. On January 28, 2009, the district court
accepted the Magistrate Judge's recommendation to grant
the acting warden's motion for summary judgment and to
dismiss the Habeas Petition. (ECF No. 9 at 5.)
April 29, 2019, Petitioner filed a second Habeas Petition
that reasserts previous arguments regarding his incarceration
for first-degree burglary and kidnapping. (ECF No. 1.)
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge only makes a
recommendation to this court, and the recommendation has no
presumptive weight. See Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The responsibility to make a final
determination remains with the court. Id. at 271. As
such, the court is charged with making de novo
determinations of those portions of the Report to which
specific objections are made. See 28 U.S.C. §
636(b)(1); See also Fed. R. Civ. P. 72(b)(3). In the
absence of specific objections to the Magistrate Judge's
Report, the court is not required to give any explanation for
adopting the Report. See Camby v. Davis, 718 F.2d
198, 199 (4th Cir. 1983). Rather, “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.” 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). Thus, the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge's
recommendation or recommit the matter with instructions. 28
U.S.C. § 636(b)(1).
court is required to interpret pro se documents
liberally and will hold those documents to a less stringent
standard than those drafted by attorneys. See Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). See also
Hardin v. United States, C/A No. 7:12-cv-0118-GRA, 2012
WL 3945314, at *1 (D.S.C. Sept. 10, 2012). Additionally,
pro se documents must be construed in a favorable
manner, “no matter how inartfully pleaded, to see
whether they could provide a basis for relief.”
Garrett v. Elko, No. 95-7939, 1997 WL 457667, at *1
(4th Cir. Aug. 12, 1997). Although pro se documents
are liberally construed by federal courts, “[t]he
‘special judicial solicitude' with which a district
court should view pro se complaints does not
transform the court into an advocate.” Weller v.
Dep't of Soc. Servs. for Balt., 901 F.2d 387, 391
(4th Cir. 1990).
record indicates that objections to the Report “are due
by [July 26, 2019], ” and that Petitioner has failed to
respond. (ECF No. 9.) As such, the court must only review the
record to ensure that there is no clear error. See
Diamond, 416 F.3d at 315.
the Magistrate Judge relied on the procedural provisions of
the Anti-Terrorism and Effective Death Penalty Act of 1996,
Pub. L. 104-132, 110 Stat. 1214, (“AEDPA”) and
the amended 28 U.S.C. § 2244 (1996) to analyze
Petitioner's successive Habeas Petition:
The prospective applicant must file in the court of appeals
for a motion for leave to file a second or successive habeas
application in the district court. [28 U.S.C.] §
2244(b)(3)(A). A three-judge panel has 30 days to determine
whether ‘the application makes a prima facie showing
that the application satisfies the requirements of'
(ECF No. 9 at 5.)
is no evidence that Petitioner sought or received permission
from the Fourth Circuit Court of Appeals to file this action.
The Habeas Petition also fails to present a claim based on a
new rule of constitutional law and does not allege cause and