Navy v. Eagleton, No. 0:2010cv02795 - Document 13 (D.S.C. 2010)
Court Description: OPINION AND ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 9 Report and Recommendations, dismissing petition without prejudice and without issuance and service of process, denying 3 Motion for Hearing filed by Roger D Navy, denying certificate of appealabilty. Signed by Honorable Cameron McGowan Currie on 12/28/2010. (jpet, )
Download PDF
<![CDATA[
Navy v. Eagleton Doc. 13 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION Roger D. Navy, ) ) Petitioner, ) ) v. ) ) Willie Eagleton, Warden of Evans ) Correctional Institution, ) ) Respondent. ) ___________________________________ ) C/A NO. 0:10-2795-CMC-PJG OPINION and ORDER This matter is before the court on application for writ of habeas corpus, filed in this court pursuant to 28 U.S.C. § 2254. 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 Paige J. Gossett for pre-trial proceedings and a Report and Recommendation (“Report”). On November 30, 2010, the Magistrate Judge issued a Report recommending that this petition be dismissed without issuing process to Respondent and without prejudice. 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 to the Report on December 21, 2010. The 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. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by 1 Dockets.Justia.com the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). After conducting a de novo review as to objections made, and considering the record, the applicable law, the Report and Recommendation of the Magistrate Judge, and Plaintiff’s objections, the court agrees with the Report of the Magistrate Judge. Accordingly, the court adopts and incorporates the Report and Recommendation by reference in this Order. Petitioner argues that the petition should proceed as “[t]he claims presented in the petition . . . can be supported and substantiated by the records and transcripts before this court.” Obj. at 2 (Dkt. # 12, filed Dec. 21, 2010). However, this line of argument does not address the issues addressed in the Report, namely, the successive nature of the petition. As this court is without jurisdiction to consider the petition as it is sucessive, it is dismissed without prejudice and without issuance and service of process upon Respondent.1 CERTIFICATE OF APPEALABILITY The 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, 1 Petitioner’s motion for an evidentiary hearing (Dkt. #3) is denied. 2 683 (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. IT IS SO ORDERED. s/ Cameron McGowan Currie CAMERON MCGOWAN CURRIE UNITED STATES DISTRICT JUDGE Columbia, South Carolina December 28, 2010 3
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
