Tucker v. Reed et al

Filing 18

ORDER RULING ON REPORT AND RECOMMENDATIONS. The court adopts the recommendation of the Magistrate Judge in full and incorporates this Report by specific reference. For all the foregoing reasons, this petition is dismissed without prejudice as untimely under 28 U.S.C. § 2244. The court declines to grant a certificate of appealability in this matter. Signed by Honorable Joseph F Anderson, Jr on 11/30/2010. (mcot, )

U N I T E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA

T ro y A. Tucker,

) ) P e t i t io n e r , ) v. ) ) R a ym o n d Reed, Jr., Warden, Manning ) C o rre c tio n a l Institution, ) ) R e sp o n d e n t. ) ______________________________________ )

C /A No. 1:10-1086-JFA-SVH

ORDER

T h e pro se petitioner, Troy A. Tucker, is an inmate at the South Carolina Department o f Corrections. He has filed a petition pursuant to 28 U.S.C. § 2254 challenging his state c o u rt conviction and sentence. T h e Magistrate Judge assigned to this action 1 has prepared a thorough Report and R e c o m m e n d a tio n and opines that the petition is untimely and should be dismissed. The R ep o rt sets forth in detail the relevant facts and standards of law on this matter, and the court in c o rp o ra te s such without a recitation. T h e petitioner was advised of his right to file objections to the Report and R e c o m m e n d a tio n , which was entered on the docket on October 14, 2010. However, the p e titio n e r failed to file objections. In the absence of specific objections to the Report of the

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. 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. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation 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 to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).

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M a g is tra te Judge, this court is not required to give any explanation for adopting the re c o m m e n d a tio n . See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). A fter carefully reviewing the applicable laws, the record in this case, and the Report a n d Recommendation, this court finds the Magistrate Judge's recommendation fairly and a c c u ra tely summarizes the facts and applies the correct principles of law. The court, th e re f o re , adopts the recommendation of the Magistrate Judge in full and incorporates this R e p o rt by specific reference. F o r all the foregoing reasons, this petition is dismissed without prejudice as untimely u n d e r 28 U.S.C. § 2244. The court declines to grant a certificate of appealability in this m a t te r .2 IT IS SO ORDERED.

N o v e m b e r 30, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

On December 1, 2009, the Rules governing Section 2254 and 2255 cases in the United States District Courts were amended to require that the district court issue or deny a certificate of appealability when a final ruling on a habeas petition is issued. See Rule 11(a) of the Rules governing 28 U.S.C. § 2254 and 2255. The court has reviewed its order and pursuant to Rule 11(a) of the Rules Governing Section 2254 and Section 2255 cases, declines to issue a certificate of appealability as petitioner has not made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336­38 (2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong)(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

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