Salazar v. United States of America

Filing 32

ORDER adopting the 27 Report and Recommendation, dismissing the action with prejudice for lack of prosecution, denying a certificate of appealability, and terminating the Respondent's 19 motion for summary judgment as moot. Signed by Honorable R. Bryan Harwell on 3/16/2018. (bgoo)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Jose Carlos Salazar,

)
)
Petitioner,
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v.
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United States of America,
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Respondent.
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________________________)

Civil Action No.: 0:17-cv-02467-RBH

ORDER

Petitioner Jose Carlos Salazar, proceeding pro se, filed this action seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. See ECF Nos. 1 & 4. Respondent has filed a motion for summary
judgment.

See ECF No. 19.

The matter is before the Court for review of the Report and

Recommendation (“R & R”) of United States Magistrate Judge Paige J. Gossett.1 See ECF No. 27. The
Magistrate Judge recommends that the Court dismiss this action with prejudice for lack of prosecution.
R & R at p. 2.
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, 270–71 (1976). The Court must conduct a de novo review of those
portions of the R & R to which specific objections are made, and it 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); Fed. R. Civ. P. 72(b).

1

This matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(c) (D.S.C.).

Neither party has filed objections to the R & R, and the time for doing so has expired.2 In the
absence of objections to the R & R, the Court is not required to give any explanation for adopting the
Magistrate Judge’s recommendations. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The
Court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life & Acc.
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 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)).
Furthermore, a certificate of appealability will not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Fourth Circuit has held that a district
court’s order denying relief on a petition pursuant to 28 U.S.C. § 2241 is not appealable unless a circuit
justice or judge issues a certificate of appealability. See, e.g., Garvin v. Wright, 583 F. App’x 287 (4th
Cir. 2014) (citing 28 U.S.C. § 2253(c)(1)(A)). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that reasonable jurists would find that the court’s
assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see also Miller-El v. Cockrell, 537 U.S. 322, 336–38 (2003). When the district court denies
relief on procedural grounds, the prisoner must demonstrate (1) the dispositive procedural ruling is
debatable and (2) the petition states a debatable claim of the denial of a constitutional right. Slack, 529

2

Petitioner’s objections to the R & R were due by March 9, 2018. See ECF Nos. 27 & 28. On March 2,
2018, the envelope containing the R & R was returned as undeliverable. See ECF No. 29-1. Significantly, the online
records of the Federal Bureau of Prisons (“BOP”) indicate Petitioner was released on January 26, 2018. See BOP
Inmate Locator, https://www.bop.gov/mobile/find_inmate/ (accessed on March 14, 2018) (search for Petitioner’s
inmate number “48764-177”); see, e.g., United States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008) (citing the BOP
Inmate Locator). Petitioner was also sentenced to two years of supervised release upon release from imprisonment,
see ECF No. 19 at p. 2; United States v. Jose Carlos Salazar, Crim. No. 3:14-cr-00411-D, at ECF No. 26 (N.D. Tex.)
(Petitioner’s criminal judgment), and therefore his § 2241 petition does not appear to be moot.

2

U.S. at 484–85. Here, the Court concludes that Petitioner has failed to make the requisite showing of
“the denial of a constitutional right.”
Having thoroughly reviewed the record in this case, the Court finds no clear error and therefore
adopts and incorporates by reference the Magistrate Judge’s R & R [ECF No. 27].3 Accordingly, the
Court DENIES AND DISMISSES this action with prejudice for lack of prosecution. The Court
DENIES a certificate of appealability because Petitioner has failed to make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Respondent’s motion for summary
judgment [ECF No. 19] is MOOT.
IT IS SO ORDERED.

Florence, South Carolina
March 16, 2018

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

3

The R & R mistakenly states Petitioner filed this action pursuant to 28 U.S.C. § 2254, see R & R at p. 1,
but he (a federal prisoner at the time of filing) actually filed it pursuant to 28 U.S.C. § 2241. See ECF No. 1. The
Court modifies the R & R to reflect this fact.

3