BYRD v. MILLIS

Filing 35

ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 09/26/2019, that the Magistrate Judge's Recommendation, (Doc. 31 ), is ADOPTED. IT IS FURTHER ORDERED that Respondent's Motion for Summary Judgment, (Doc. [ 17]), is GRANTED, that Petitioner's Motion for Summary Judgment, (Doc. 24 ), is DENIED, that Petitioner's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, (Doc. 1 ), is DENIED, and that this action is DISMISSED. A Judgment dismissing this action will be entered contemporaneously with this Order. Finding no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction, nor a debatable procedural ruling, a certificate of appealability is not issued. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

HENRY CLIFFORD BYRD, SR.,
Petitioner,
v.
DAVIS MILLIS,
Respondent.

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1:18CV332-1

ORDER

This matter is before this court for review of the
Recommendation filed on August 30, 2019, by the Magistrate Judge
in accordance with 28 U.S.C. § 636(b). (Doc. 31.) In the
Recommendation, the Magistrate Judge recommends that
Respondent’s Motion for Summary Judgment, (Doc. 17), be granted,
that Petitioner’s Motion for Summary Judgment, (Doc. 24), be
denied, that Petitioner’s Petition under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody, (Doc. 1), be
denied, and that this action be dismissed. The Recommendation
was served on the parties to this action on August 30, 2019.
(Doc. 32.) Petitioner timely filed objections, (Doc. 34), to the
Recommendation.
This court is required to “make a de novo determination of
those portions of the [Magistrate Judge=s] report or specified

proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). This court “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the [M]agistrate [J]udge. . . . [O]r recommit the matter
to the [M]agistrate [J]udge with instructions.” Id.
This court has appropriately reviewed the portions of the
Recommendation to which objections were made and has made a
de novo determination which is in accord with the Magistrate
Judge=s Recommendation.

This court therefore adopts the

Recommendation.
IT IS THEREFORE ORDERED that the Magistrate Judge=s
Recommendation, (Doc. 31), is ADOPTED. IT IS FURTHER ORDERED that
Respondent’s Motion for Summary Judgment, (Doc. 17), is GRANTED,
that Petitioner’s Motion for Summary Judgment, (Doc. 24), is
DENIED, that Petitioner’s Petition under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody, (Doc. 1), is
DENIED, and that this action is DISMISSED.
A Judgment dismissing this action will be entered
contemporaneously with this Order.

Finding no substantial issue

for appeal concerning the denial of a constitutional right
affecting the conviction, nor a debatable procedural ruling, a
certificate of appealability is not issued.

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This the 26th day of September, 2019.

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United States District Judge

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