Brown v. Mauney

Filing 27

OPINION AND ORDER adopting the 23 Report and Recommendation, granting the Respondent's 11 Motion for Summary Judgment, denying the Petition, and denying a certificate of appealability. Signed by Honorable Bruce Howe Hendricks on 10/19/2016. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Travis Montgomery Brown, Jr.,

) Civil Action No.: 0:16-250-BHH
)
Petitioner, )
)
v.
)
OPINION AND ORDER
)
Warden R. H. Mauney,
)
)
Respondent. )
__________________________________ )
Petitioner Travis Montgomery Brown, Jr. (“Petitioner”), proceeding pro se, filed this
habeas relief action pursuant to 28 U.S.C. § 2254. (ECF No. 1.) 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 March 28, 2016, Respondent Warden R. H. Mauney (“Respondent”), filed a motion
for summary judgment as well as a return and memorandum. (ECF Nos. 11,12.) Since
Petitioner is pro se in this matter, the Court entered an order pursuant to Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975) on March 29, 2016, advising Petitioner of the importance of a
dispositive motion and of the need for him to file an adequate response to Respondent’s
motion. (ECF No. 14.) In that order, Petitioner was advised of the possible consequence of
dismissal if he failed to respond adequately. Petitioner filed a response in opposition to the
motion for summary judgment (ECF No. 17), Respondent filed a reply (ECF No. 18) and
Petitioner filed a Sur Reply (ECF No. 19). Magistrate Judge Gossett considered the parties’
submissions and the record in this case, and recommended Respondent’s motion for summary
judgment be granted, and the petition be denied. (ECF No. 23.)
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 (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). The Magistrate Judge advised Petitioner of his right to file
specific objections to the Report. (ECF No. 23 at 14.) Petitioner filed no objections and the time
for doing so expired on September 6, 2016.
After a thorough review of the record of this matter, the applicable law, and the Report
of the Magistrate Judge, the Court finds no clear error. Accordingly, the Court adopts and
incorporates the Report and Recommendation (ECF No. 23) by reference into this order. It is
therefore ORDERED that the Respondent’s motion for summary judgment (ECF No. 11) is
GRANTED and the petition is 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 this standard by demonstrating that reasonable jurists
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would find this Court’s assessment of his constitutional claims to be debatable or wrong and
that any dispositive procedural ruling by this 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. Therefore, a certificate of appealability is denied.
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
United States District Judge
Greenville South Carolina
October 19, 2016
*****
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by Rules
3 and 4 of the Federal Rules of Appellate Procedure.

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