Rodriguez v. Bush

Filing 22

ORDER RULING ON REPORT AND RECOMMENDATION for 21 Report and Recommendation, and 8 Motion for Summary Judgment filed by Dennis Bush. The court hereby ORDERS that the Magistrate Judge's Report and Recommendation is ACCEPTED. Accordingly, the Respondent's motion for summary judgment is hereby GRANTED and the Petition is denied. Signed by Chief Judge Terry L. Wooten on 7/30/2014. (gmil)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Nicanor Perez Rodriguez,
Petitioner,
vs.
Dennis Bush, Warden,
Respondent.

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Civil Action No.: 0:13-cv-03401-TLW

ORDER
Petitioner, Nicanor Perez Rodriguez (“Petitioner”), filed this pro se petition for writ of
habeas corpus seeking relief pursuant to 28 U.S.C. § 2254 on or about December 5, 2013. (Doc.
#1). The Respondent filed a return and memorandum and a motion for summary judgment on
January 31, 2014. (Docs. #7; 8). Petitioner filed a response opposing Respondent’s motion on
April 14, 2014. (Doc. #19).
This matter now comes before the Court for review of the Report and Recommendation
(“the Report”) issued on July 7, 2014 by United States Magistrate Judge Paige J. Gossett, to
whom this case had previously been assigned. (Doc. #21). In the Report, the Magistrate Judge
recommends that the District Court grant Respondent’s motion for summary judgment and
dismiss the instant § 2254 petition. (Doc. #21). The Petitioner did not file objections to the
Magistrate Judge’s Report. The deadline for Petitioner to file objections was July 24, 2014.
(See Doc. #21).
This Court is charged with conducting a de novo review of any portion of the Magistrate
Judge’s Report to which a specific objection is registered, and may accept, reject, or modify, in
whole or in part, the recommendations contained in that report. 28 U.S.C. § 636. In the absence
of 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).
This Court has carefully reviewed the Magistrate Judge=s Report and Recommendation
and the record in this case. The Petitioner did not file objections to the Report. Accordingly, for
the reasons articulated by the Magistrate Judge, it is hereby ORDERED that the Magistrate
Judge=s Report and Recommendation is ACCEPTED. (Doc. #21).
Further, to the extent the Petitioner did raise his claim on appeal in his petition for writ of
certiorari to the South Carolina Supreme Court, such that the claim would not be procedurally
barred from federal habeas review, this Court concludes that no relief would be appropriate on
the merits. Petitioner and Respondents briefed the merits of the claim raised by Petitioner in the
instant case. (See Docs. #8; 19). After careful consideration and review of the arguments of
both parties, the Court additionally grants Respondents’ motion for summary judgment on the
merits of Petitioner’s claim.
Accordingly, The Respondent’s motion for summary judgment (Doc. #8) is hereby
GRANTED and the Petition is denied. The above-captioned matter is hereby dismissed.
The Court has reviewed the petition in accordance with Rule 11 of the Rules Governing
Section 2254 Proceedings. The Court concludes that it is not appropriate to issue a Certificate of
Appealability as to the issues raised herein. Petitioner is advised that he may seek a Certificate
from the Fourth Circuit Court of Appeals under Rule 22 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
s/ Terry L. Wooten
Terry L. Wooten
Chief United States District Judge
July 30, 2014
Columbia, South Carolina
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