Middleton v. Warden, Lee Correctional Institution

Filing 34

ORDER adopting the 30 Report and Recommendation, granting the Respondent's 9 motion for summary judgment, denying the 1 Petition, and denying a certificate of appealability. Signed by Honorable Bruce Howe Hendricks on 7/21/2016. (bgoo, )

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

George T. Middleton,

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Petitioner,
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v.
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Warden, Lee Correctional Institution,
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Respondent.
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________________________________)

Civil Action No. 0:15-2757-BHH

ORDER

This matter is before the Court upon the Petitioner’s pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b)(1)(A)
and (B) and Local Civil Rule 73.02(B)(2)(g), D.S.C., the matter was referred to a United
States Magistrate Judge for preliminary review.
On September 11, 2015, the Respondent filed a motion for summary judgment, and
on September 14, 2015, the Magistrate Judge issued an order pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), advising the Petitioner of the summary judgment
procedure and the possible consequences of a failure to adequately respond to the motion.
After being granted two extensions of time to respond, the Petitioner filed a response on
December 22, 2015.
On June 28, 2016, the Magistrate Judge issued a report and recommendation
(“R&R”), analyzing the issues and recommending that the Court grant the Respondent’s
motion for summary judgment. Attached to the R&R was a notice advising the Petitioner
of his right to file written, specific objections to the R&R within fourteen days of receiving
a copy. To date, no objections have been filed.
The Magistrate Judge makes only a recommendation to the Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court
is charged with making a de novo determination only of those portions of the R&R to which
specific objections are made, and the Court may accept, reject, or modify, in whole or in
part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate
Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of specific objections, the
Court reviews the matter only for clear error. 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’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Here, because no objections were filed, the Court has reviewed the record, the
applicable law, and the findings and recommendations of the Magistrate Judge for clear
error. Finding none, the Court hereby adopts the R&R (ECF No. 30); grants the
Respondent’s motion for summary judgment (ECF No. 9); and denies the Petitioner’s §
2254 petition.
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
United States District Judge

July 21, 2016
Charleston, South Carolina

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)(2)-(3). A prisoner satisfies this standard by demonstrating that
reasonable jurists would find that this Court's assessment of the prisoner’s constitutional
claims is debatable or wrong and that any dispositive procedural ruling by the 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). Here, the Court
finds that the legal standard for the issuance of a certificate of appealability has not been
met. Therefore, the Court denies a certificate of appealability.