United States District Court, D. South Carolina, Rock Hill Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge
matter is before the court with the Report and Recommendation
of United States Magistrate Judge Paige J. Gossett, made in
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02
of the District of South Carolina. Elson McKanic
(“McKanic”) is a pro se prisoner seeking habeas
corpus relief pursuant to 28 U.S.C. § 2254. In her
Report and Recommendation, Magistrate Judge Gossett
recommends dismissing McKanic's habeas petition as
successive pursuant to 28 U.S.C. § 2244(b)(2). (R&R
3-4, ECF No. 7.)
filed objections to the Report and Recommendation. Objections
to the Report and Recommendation must be specific. Failure to
file specific objections constitutes a waiver of a
party's right to further judicial review, including
appellate review, if the recommendation is accepted by the
district judge. See United States v. Schronce, 727
F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of
specific objections to the Report and Recommendation
of the magistrate judge, this court is not required to give
any explanation for adopting the recommendation. See
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
review, the court finds that many of McKanic's objections
are non-specific, unrelated to the dispositive portions of
the magistrate judge's Report and Recommendation, or
merely restate his claims. However, the court was able to
glean one specific objection.
specifically objects to the magistrate judge's conclusion
that his petition should be dismissed as successive, arguing
that the state court authorized the instant petition
challenging the expiration of his current sentence. (Obj. 1,
ECF No. 9.) This argument is without merit.
has previously filed several § 2254 petitions.
McKanic v. Bazzle, C/A No. 9:04-cv-1835-HMH (summary
judgment granted based on petition not timely); McKanic
v. Ozmint, C/A No. 9:06-cv-1598-HMH (dismissed as
successive); McKanic v. Ozmint, C/A No.
9:07-cv-800-HMH (dismissed as successive). “[A]
prisoner seeking to file a successive application in the
district court must first obtain authorization from the
appropriate court of appeals.” United States v.
Winestock, 340 F.3d 200, 205 (4th Cir. 2003) (citing 28
U.S.C. § 2244(b)(3)). “The court of appeals must
examine the application to determine whether it contains any
claim that satisfies § 2244(b)(2). . . .”
Id. In the absence of pre-filing authorization from
the court of appeals, the district court is without
jurisdiction to consider a second or successive application.
Id. (citation omitted). McKanic has not obtained
authorization from the appropriate United States Court of
Appeals to proceed with a second or successive § 2254
through review of the Report and Recommendation and the
record in this case, the court adopts Magistrate Judge
Gossett's Report and Recommendation and incorporates it
herein. Because the court lacks jurisdiction over this
successive § 2254 petition, it must be dismissed.
that McKanic's § 2254 petition, docket number 1, is
dismissed without prejudice and without requiring the
Respondent to file a return. It is further
that a certificate of appealability is denied because McKanic
has failed to make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. §
IS SO ORDERED.
OF RIGHT TO APPEAL
is hereby notified that he has the right to appeal this order
within thirty (30) days from the date hereof, pursuant to
Rules 3 ...