White v. South Carolina

Filing 41

ORDER RULING ON REPORT AND RECOMMENDATION. The court adopts the recommendation of the Magistrate Judge in full and incorporates this Report by specific reference. Accordingly, the respondent's motion for summary judgment 30 is granted and this action is dismissed with prejudice. Signed by Honorable Joseph F Anderson, Jr on 8/16/2011. (mcot, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Michael Angel White,

)
)
Petitioner,
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v.
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)
Warden of Lee Correctional Institution,
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)
Respondent.
)
_______________________________________)

C/A No. 1:10-1456-JFA-SVH

ORDER

The pro se petitioner, Michael Angel White, is an inmate with the South Carolina
Department of Corrections. He has filed this petition under 28 U.S.C. § 2254 challenging
his state court convictions for armed robbery, kidnaping, and assault and battery with intent
to kill.
The Magistrate Judge assigned to this action 1 has prepared a comprehensive Report
and Recommendation wherein she suggests that the court should grant the respondent’s
motion for summary judgment as the petition is untimely.2 The Report sets forth in detail
the relevant facts and standards of law on this matter, and the court incorporates such without
a recitation.

1

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 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. 28 U.S.C. § 636(b)(1).
2

An order was issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying
petitioner of the summary dismissal procedure and possible consequences if he failed to adequately respond
to the motion for summary judgment. Petitioner responded to the motion.

1

The petitioner was advised of his right to file objections to the Report and
Recommendation which was filed on July 22, 2011. However, the petitioner has failed to
file objections and the time within which to do so has expired. In the absence of specific
objections to the Report of the Magistrate Judge, this court is not required to give any
explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th
Cir. 1983).
As the Magistrate Judge properly opines, the petitioner’s statute of limitations to file
a habeas action ended on March 31, 2010. Therefore, the present petition, filed June 3, 2010,
is untimely. 28 U.S.C. § 2244(d)(1)(A).
After carefully reviewing the applicable law, the record in this case, and the Report
and Recommendation, the court finds the Magistrate Judge’s recommendation fairly and
accurately summarizes the facts and applies the correct principles of law. The court,
therefore, adopts the recommendation of the Magistrate Judge in full and incorporates this
Report by specific reference.
Accordingly, the respondent’s motion for summary judgment (ECF No. 30) is granted
and this action is dismissed with prejudice.
It is further ordered that a certificate of appealability is denied because the petitioner
has failed to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).3

3

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) (West 2009). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find both that his constitutional claims are debatable and that
any dispositive procedural rulings by the district court are also debatable or wrong. 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
(continued...)

2

IT IS SO ORDERED.

Joseph F. Anderson, Jr.
United States District Judge

August 16, 2011
Columbia, South Carolina

3

(...continued)
Cir.2001). In the instant matter, the court finds that the Petitioner has failed to make “a substantial showing
of the denial of a constitutional right.”

3