United States District Court, D. South Carolina, Greenville Division
ORDER AND OPINION
Michael Henry Roberts, 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
Magistrate Judge's Report and Recommendation
(“Report”). (ECF No. 8.) For the reasons stated
below, the court ACCEPTS the Magistrate
Judge's Report (ECF No. 8) and DISMISSES
Petitioner Michael Henry Roberts' Habeas Petition (ECF
No. 1) without prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
Report sets forth the relevant facts and legal standards,
which this court incorporates herein without a full
recitation. (ECF No. 8.) Petitioner is seeking relief
regarding five (5) convictions for sexual exploitation of a
minor. (Id. at 1.) Criminal proceedings took place
in the Aiken County Court of General Sessions, which resulted
in Petitioner receiving concurrent sentences of two years,
with credit for time served. (Id.) Petitioner filed
this action on August 19, 2019. (ECF No. 1.) The Magistrate
Judge issued the Report on August 22, 2019, recommending
dismissal of the Habeas Petition without prejudice for
failure to exhaust his state court remedies. (ECF No. 8 at
4.) The parties were advised of their right to file
objections to the Report on or before September 5, 2019.
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 makes only a
recommendation to this court, which has no presumptive
weight. The responsibility to make a final determination
remains with this court. See Mathews v. Weber, 423
U.S. 261, 270-71 (1976). The court is charged with making a
de novo determination of those portions of the
Report to which specific objections are made. Diamond v.
Colonial Life and Acc. Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005). “[I]n 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.'” Id.
(quoting Fed.R.Civ.P. 72 advisory committee's note).
Furthermore, failure to file specific written objections to
the Report results in a party's waiver of the right to
appeal from the judgment of the District Court based upon
such recommendation. 28 U.S.C. § 636(b)(1); Thomas
v. Arn, 474 U.S. 140 (1985). 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
September 5, 2019, and that Petitioner has failed to respond.
(ECF No. 8.) As such, the court must only review the record
to ensure that there is no clear error. See Diamond,
416 F.3d at 315. Here, the Magistrate Judge relied on Section
2254(b) and determined that the Habeas Petition is premature.
(ECF No. 8 at 5.) A Habeas Petition: “shall not be
granted unless it appears that . . . the application has
exhausted the remedies available in the courts of the State;
or there is an absence of available State corrective process;
or circumstances exist that render such process ineffective
to protect the rights of the applicant.” 28 U.S.C.
§ 2254(b)(1). The Report indicates that, “[i]n
South Carolina, a person in custody has two primary means of
attacking the validity of his conviction: (1) through a
direct appeal, and (2) if the direct appeal turns out to be
unsuccessful, by filing an application for Post-Conviction
Relief.” (ECF No. 8 at 5.) The Magistrate Judge found
that “at the time of the filing of the instant petition
. . . [Petitioner] has not filed a direct appeal or a PCR
application.” Id. Consequently, the court
finds that Petitioner has failed to exhaust his state court
thorough review of the Report and the record in this case,
the court ACCEPTS the Magistrate Judge's
Report and Recommendation (ECF No. 8) and summarily
DISMISSES Petitioner Michael Henry
Roberts' Petition for Writ of Habeas Corpus (ECF No. 1)
without prejudice and without requiring the Respondent to
file a return.
governing certificates of appealability 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 ...