6:12-cv-02424-JFA Date Filed 06/04/13 Entry Number 18 Page 1 of 3
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Emmett Ray Nall,
) C/A No. 6:12-2424-JFA-KFM
The pro se petitioner, Emmett Ray Nall, brings this action pursuant to 28 U.S.C.
§ 2254 challenging his 1997 state court conviction and life sentence..
The Magistrate Judge assigned to this action has prepared a Report and
Recommendation wherein he opines that the petition is successive and that it should be
summarily dismissed because the petitioner has not received permission from the Fourth
Circuit Court of Appeals to file a successive § 2254 petition. The Magistrate Judge further
notes that the petitioner has previously raised a challenge to his state conviction in Nall v.
Bazzle (C/A No. 6:07-1483-JFA-WMC) and Nall v. McCall (C/A 6:11-2771-JFA-KFM),
wherein the court considered the petition on the merits and granted summary judgment to the
respondent. The Report sets forth in detail the relevant facts and standards of law on this
The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02. 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.
Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those
portions of the Report to which specific objection is made and the court may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate
Judge with instructions. 28 U.S.C. § 636(b)(1).
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matter, and the court incorporates such without a recitation.
The petitioner was advised of his right to file objections to the Report and
Recommendation. The petitioner did not file objections. In the absence of specific
objections to the Report 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
The Magistrate Judge is correct in his opinion that the claims raised in this petition
are successive. As the petitioner has not received permission from the Fourth Circuit Court
of Appeals to file a successive § 2254 petition, this court is without authority to entertain it.
28 U.S.C. § 2244 and United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003) (“In the
absence of pre-filing authorization, the district court lacks jurisdiction to consider an
application containing abusive or repetitive claims.”)
After a careful review of the record, the applicable law, the Report and
Recommendation, the court finds the Magistrate Judge’s recommendation proper and
incorporated herein by reference. Accordingly, this action is dismissed without prejudice
and without issuance and service of process.
IT IS FURTHER ORDERED that a certificate of appealability is denied because the
petitioner has failed to make “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).2
A certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U .S.C. § 2253(c)(2) (West 2009). 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); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th
Cir.2001). In the instant matter, the court finds that the petitioner has failed to make “a substantial showing
of the denial of a constitutional right.”
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IT IS SO ORDERED.
June 4, 2013
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge