Griffin v. Warden Perry Correctional Institution
ORDER adopting the 56 Report and Recommendation, granting the Respondent's 25 Motion for Summary Judgment, dismissing the Petition with prejudice as untimely, rendering Petitioner's 42 Motion for Issuance of Subpoena moot, and denying a certificate of appealability. Signed by Honorable Mary Geiger Lewis on 9/14/2017. (bgoo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
WARDEN PERRY CORRECTIONAL
CIVIL ACTION NO. 0:16-03691-MGL
ORDER ADOPTING THE REPORT AND RECOMMENDATION,
GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT,
AND DISMISSING THE PETITION WITH PREJUDICE AS UNTIMELY
This case was filed as a 28 U.S.C. § 2254 action.
Petitioner is proceeding pro se.
matter is before the Court for review of the Report and Recommendation (Report) of the United
States Magistrate Judge suggesting Respondent’s motion for summary judgment be granted and
the Petition be dismissed with prejudice as untimely.
The Report was made in accordance with
28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.
The Magistrate Judge makes only a recommendation to this Court.
recommendation has no presumptive weight.
remains with the Court.
The responsibility to make a final determination
Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged
with making a de novo determination of those portions of the Report to which specific objection
is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of
the Magistrate Judge or recommit the matter with instructions.
28 U.S.C. § 636(b)(1).
The Magistrate Judge filed the Report on August 25, 2017, but Petitioner failed to file
any objections to the Report.
“[I]n 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
Moreover, a failure to object waives appellate review.
Wright v. Collins,
766 F.2d 841, 845-46 (4th Cir. 1985).
After a thorough review of the Report and the record in this case pursuant to the standard
set forth above, the Court adopts the Report and incorporates it herein.
Therefore, it is the
judgment of this Court Respondent’s motion for summary judgment is GRANTED and the
Petition is DISMISSED WITH PREJUDICE as untimely.
Petitioner’s motion for issuance of
subpoena is thus necessarily RENDERED MOOT.
The governing law applicable to certificates of appeals provides “[a] certificate of
appealability may issue . . . only if the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2).
A petitioner satisfies this standard by demonstrating reasonable jurists would find this
Court’s assessment of his constitutional claims is debatable or wrong and any dispositive
procedural ruling by this Court is 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.
In the case at bar, the legal standard for the issuance of a certificate of appealability is
Therefore, to the extent a certificate of appealability is requested, the request is hereby
IT IS SO ORDERED.
Signed this 14th day of September, 2017, in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this Order within thirty days from
the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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