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0:13-cv-00554-CMC Date Filed 06/04/13 Entry Number 17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

ROCK HILL DIVISION

C/A NO. 0:13-554-CMC-PJG

OPINION and ORDER

Donald Eugene Griffin, Jr.,

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Michael McCall, Warden of the Lee
Correctional Institution,

Petitioner,

v.

Respondent.

This matter is before the court on the pro se 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 May 2, 2013, the Magistrate Judge issued a Report

recommending that this matter be dismissed without prejudice as this court is without jurisdiction

to entertain it. After requesting and receiving an extension of time to file objections, Petitioner filed

objections to the Report on May 29, 2013.

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

the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28

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0:13-cv-00554-CMC Date Filed 06/04/13 Entry Number 17 Page 2 of 3

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 Petitioner’s

objections, the court agrees with the conclusions of the Magistrate Judge. Accordingly, the court

adopts and incorporates the Report and Recommendation by reference in this Order.

Petitioner argues the petition is not successive as he seeks to apply the recent Supreme Court

case, Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309 (2012), which he contends is a new rule of law

that was previously unavailable. See Obj. at 1 (ECF No. 16). However, Petitioner’s objections do

not excuse the statutory requirement to obtain certification by a panel of the Fourth Circuit Court

of Appeals allowing him to file a second or successive petition.1 As provided in 28 U.S.C. § 2244,

“[b]efore a second or successive application permitted by this section is filed in the district court,

the applicant shall move in the appropriate court of appeals for an order authorizing the district court

to consider the application.” 28 U.S.C. § 2244(b)(3)(A). This he has not done.

Accordingly, this petition is dismissed without prejudice and without requiring a return from

Respondent.

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).

1As noted in the Report, Petitioner’s previous petition was dismissed as untimely, which operates
as an adjudication on the merits. See Altman v. Benik, 337 F.3d 764 (7th Cir. 2003).

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0:13-cv-00554-CMC Date Filed 06/04/13 Entry Number 17 Page 3 of 3

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,

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
June 4, 2013

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