United States District Court, D. South Carolina
F. ANDERSON, JR., UNITED STATES DISTRICT JUDGE
pro se petitioner, Aubin Liberte
(“Petitioner”), brought this action pursuant to
28 U.S.C. § 2254 for habeas relief. In accordance with
28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c)
(D.S.C.), the case was referred to the Magistrate Judge.
Magistrate Judge assigned to this action prepared a
thorough Report and Recommendation (“Report”) and
opines that this petition should be summarily dismissed
without prejudice and without requiring the respondent to
file a return because it is impermissibly successive. (ECF
No. 10). The Report sets forth, in detail, the relevant facts
and standards of law on this matter, and this Court
incorporates those facts and standards without a recitation.
was advised of his right to object to the Report, which was
entered on the docket on November 6, 2019. (ECF No. 10). The
Magistrate Judge required the petitioner to file objections
by November 20, 2019. Id. However, Petitioner failed
to timely file objections. Petitioner did file objections on
November 26, 2019. (ECF No. 15). Although Petitioner's
objections were untimely, the court will consider them
STANDARD OF REVIEW
district court is only required to conduct a de novo
review of the specific portions of the Magistrate Judge's
Report to which an objection is made. See 28 U.S.C.
§ 636(b); Fed.R.Civ.P. 72(b); Carniewski v. W.
Virginia Bd. of Prob. & Parole, 974 F.2d 1330 (4th
Cir. 1992). In the absence of specific objections to portions
of the Magistrate Judge's Report, this Court is not
required to give an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198,
199 (4th Cir. 1983). Thus, the Court must only review those
portions of the Report to which Plaintiff has made a specific
written objection. Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005).
objection is specific if it ‘enables the district judge
to focus attention on those issues-factual and legal-that are
at the heart of the parties' dispute.” Dunlap
v. TM Trucking of the Carolinas, LLC, No.
0:15-cv-04009-JMC, 2017 WL 6345402, at *5 n.6 (D.S.C. Dec.
12, 2017) (citing One Parcel of Real Prop. Known as 2121
E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996)). A
specific objection to the Magistrate's Report thus
requires more than a reassertion of arguments from the
complaint or a mere citation to legal authorities. See
Workman v. Perry, No. 6:17-cv-00765-RBH, 2017 WL
4791150, at *1 (D.S.C. Oct. 23, 2017). A specific objection
must “direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982).
stated, nonspecific objections have the same effect as would
a failure to object.” Staley v. Norton, No.
9:07-0288-PMD, 2007 WL 821181, at *1 (D.S.C. Mar. 2, 2007)
(citing Howard v. Secretary of Health and Human
Services, 932 F.2d 505, 509 (6th Cir. 1991)). The Court
reviews portions “not objected to-including those
portions to which only ‘general and conclusory'
objections have been made-for clear error.”
Id. (citing Diamond, 416 F.3d at 315;
Camby, 718 F.2d at 200; Orpiano, 687 F.2d
at 47) (emphasis added).
his sole objection, Petitioner states that “the instant
case should not be summarily dismissed as a successive §
2254 petition, because the original petition was never
adjudicated on the merits, and the argument raised was and is
subject matter jurisdiction which may be raised at any
time.” (ECF No. 15, p. 2).
is correct in asserting that a petition is only successive if
the original petition was adjudicated on the merits.
See 28 U.S.C. § 2244(b). However, Petitioner is
incorrect in alleging that his original petition was not
adjudicated on the merits. As stated in the Report,
Petitioner's original 2009 petition was dismissed as
untimely which is considered a dismissal on the merits.
See In re Rains, 659 F.3d 1274, 1275 (10th Cir.
2011) (collecting cases). Thus, the instant petition is
successive and must be dismissed.
carefully reviewing the applicable laws, the record in this
case, the Report, and subsequent objections, this Court finds
the Magistrate Judge's recommendation fairly and
accurately summarizes the facts and applies the correct
principles of law and incorporates it herein by reference.
(ECF No. 10). Consequently, the petition ...