Barr v. Cutledge
Filing
34
OPINION and ORDER ADOPTING 32 REPORT AND RECOMMENDATION, granting Respondent's motion for summary judgment 20 and denying the petition for writ of habeas corpus. A certificate of appealability is denied. Signed by Honorable Mary G Lewis on 2/19/2013. (abuc) Modified to edit text on 2/19/2013 (abuc).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
) Civil Action No.: 0:12-302-MGL
)
Petitioner, )
)
)
v.
OPINION AND ORDER
)
WardenLeroy Cartledge,
)
)
Respondent. )
_______________________________________ )
Marcus C. Barr,
Pro se Petitioner Marcus C. Barr (“Petitioner”), a state prisoner housed at the McCormick
Correctional Institution in McCormick, South Carolina, filed this habeas relief action pursuant to
28 U.S.C. § 2254. (ECF No. 1). In his Petition, Petitioner raises the issue of ineffective assistance
of plea counsel. This matter is before the court on Respondent’s motion for summary judgment.
(ECF No. 20.) In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c),
D.S.C., this matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial
proceedings and a Report and Recommendation (“Report”). On January 28, 2013, Magistrate Judge
Gossett issued a Report recommending that Respondent’s motion for summary judgment be granted
and the petition for writ of habeas corpus be denied. (ECF No. 32.) The Magistrate Judge advised
Plaintiff of the procedures and requirements for filing objections to the Report and Recommendation
and the serious consequences if he failed to do so. (ECF No. 32 at 14.) Plaintiff has filed no
objections and the time for doing so expired on February 14, 2012.
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, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged
with making a de novo determination of any portion of the Report and Recommendation 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 U.S.C. § 636(b). The court reviews the Report and
Recommendation only for clear error in the absence of an objection. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “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.”) (citation
omitted).
After a thorough review of the record of this matter, the applicable law, and the Report and
Recommendation of the Magistrate Judge, the court finds no clear error. Accordingly, the court
adopts and incorporates the Report and Recommendation (ECF No. 32) by reference into this order.
It is therefore ORDERED that the Respondent’s motion for summary judgment be
GRANTED and the petition for writ of habeas corpus be DENIED.
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).
28 U.S.C. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable jurists
would find this court's assessment of his constitutional claims debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. See Miller–El v. Cockrell,
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537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484,
120 S.Ct. 1595, 146 L.Ed.2d 542 (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/Mary G. Lewis
United States District Judge
February 19. 2013
Spartanburg, South Carolina
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