Lide v. Owen

Filing 27

ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 23 Report and Recommendations, dismissing Petition with prejudice for lack of prosecution; terminating 14 Motion to Dismiss filed by John Owen and denying a certificate of appealability. Signed by Honorable J Michelle Childs on 9/2/2011. (jpet, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Willie Lee Lide,

)
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Petitioner,
)
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v.
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John Owen, Warden,
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Federal Correctional Institution,
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Williamsburg,
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Respondent.
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____________________________________)

C.A. No.: 0:11-cv-00517-JMC

ORDER

This matter is before the court on the pro se Petitioner’s Petition for Writ of Habeas Corpus
in which he challenges the calculation of his sentence. [Doc. 1]. The Magistrate Judge’s Report and
Recommendation [Doc. 23], filed on August 1, 2011, recommends that the petition be dismissed
with prejudice for lack of prosecution and for failure to comply with the court’s orders. The
Magistrate Judge further recommends that any pending motions [Doc. 14] be terminated. The
Report and Recommendation sets forth in detail the relevant facts and legal standards on this matter,
and the court incorporates the Magistrate Judge’s recommendation herein without a recitation.
The Magistrate Judge’s Report and Recommendation is made in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge
makes only a recommendation to this court. The recommendation has no presumptive weight. The
responsibility to make a final determination remains with this court. See Mathews v. Weber, 423
U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific objections are made, and the court
may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation or
recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
Petitioner was advised of his right to file objections to the Report and Recommendation
[Doc. 23, at 3]. However, Petitioner filed no objections to the Report and Recommendation.
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In the absence of objections to the Magistrate Judge’s Report and Recommendation, 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). Furthermore, failure to file specific written objections to the Report and
Recommendation results in a party’s waiver of the right to appeal from the judgment of the District
Court based upon such recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140
(1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th
Cir. 1984).
After a thorough review of the Report and Recommendation and the record in this case, the
court adopts the Magistrate Judge’s Report and Recommendation [Doc. 23]. It is therefore
ORDERED that Petitioner’s Petition [Doc. 1] is DISMISSED with prejudice for lack of
prosecution for failure to comply with the court’s orders. It is further ORDERED that any pending
motions are TERMINATED.
CERTIFICATE OF APPEALABILITY
The law governing certificates of appealability 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).

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
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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.

IT IS SO ORDERED.
s/J. Michelle Childs
United States District Judge
Greenville, South Carolina
September 2, 2011

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