Opinion
Civil Action No. 5:14-3516-TMC
10-22-2014
Tyrone R. Montgomery, # 359300, Petitioner, v. Warden, Evans Correctional Institution, Respondent.
ORDER
Petitioner Tyrone R. Montgomery, a state prisoner, is seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. Before the court is the magistrate judge's Report and Recommendation ("Report"), recommending that the court dismiss the petition without prejudice so Petitioner can exhaust his state remedies. (ECF No. 10.) Petitioner was advised of his right to file objections to the Report. (ECF No. 10 at 6.) Rather than filing objections, however, Petitioner has filed a response in essence agreeing with the Report, and requesting for a voluntary dismissal of the petition so that he might exhaust his state remedies. (ECF No. 12).
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02, DSC, this matter was initially referred to a magistrate judge.
The Report has no presumptive weight and the responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). In the absence of objections to the Report, this court is not required to provide an explanation for adopting the recommendation. 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).
After a thorough review, the court finds no clear error and, therefore, adopts the Report and incorporates it herein by reference. Therefore, this habeas petition is DISMISSED without prejudice.
In addition, a certificate of appealability will not issue to a prisoner seeking habeas relief absent "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A prisoner satisfies this standard by demonstrating that reasonable jurists would find both that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the court finds that the petitioner has failed to make a substantial showing of the denial of a constitutional right. Accordingly, the court declines to issue a certificate of appealability.
IT IS SO ORDERED.
s/ Timothy M. Cain
United States District Judge
October 22, 2014
Anderson, South Carolina