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6:13-cv-00031-JFA Date Filed 06/04/13 Entry Number 18 Page 1 of 3

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Emmett Ray Nall,

vs.

Warden Cartledge,

Petitioner,

____________________________________

Respondent.

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C/A No. 6:13-31-JFA-KFM

ORDER

The pro se petitioner, Emmett Ray Nall, brings this action pursuant to 28 U.S.C.

§ 2255 seeking to vacate, correct, or set aside his 1997 state court conviction and life

sentence..

The Magistrate Judge assigned to this action has prepared a Report and

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Recommendation wherein he opines that the petition is not properly before this court because

Mr. Nall is not a federal prisoner. Moreover, the Magistrate Judge has construed the § 2255

petition as one under 28 U.S.C. § 2254 and suggests 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 this challenge to his state conviction in Nall v. Bazzle (C/A No. 6:07-

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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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6:13-cv-00031-JFA Date Filed 06/04/13 Entry Number 18 Page 2 of 3

1483-JFA-WMC) and Nall v. McCall (C/A 6:11-2771-JFA-KFM), wherein the court

considered the petitions 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 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 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 Cir. 1983).

The Magistrate Judge is correct in his opinion that the claims raised in this petition,

and construed under § 2254, 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, and 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. The petitioner’s motion for summary judgment

(ECF No. 17) is denied.

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.”

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6:13-cv-00031-JFA Date Filed 06/04/13 Entry Number 18 Page 3 of 3

28 U.S.C. § 2253(c)(2).2

IT IS SO ORDERED.

June 4 2013
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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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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