Price v. McCabe

Filing 52

ORDER ACCEPTING 38 REPORT AND RECOMMENDATION, granting Respondent's 21 Motion for Summary Judgment, and denying Petitioner's motions for evidentiary hearings, 3 and 33 . This action is dismissed with prejudice and the legal standard for the issuance of a certificate of appealability has not been met. Signed by Honorable J Michelle Childs on 3/21/2012. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Jeroid J. Price,

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)
Petitioner,
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v.
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)
Wayne McCabe, Warden,
)
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Respondent..
)
____________________________________)

Civil Action No.: 1:11-cv-01172-JMC

ORDER

This matter is before this Court for a review of the Magistrate Judge’s Report and
Recommendation (“Report”), [Doc. 38], filed on January 26, 2012, recommending that
Respondent’s Motion for Summary Judgment [Doc. 21] be granted and Petitioner’s motions for
evidentiary hearings [Docs. 3 and 33] be denied. On May 18, 2011, Petitioner, proceeding pro se,
filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 [Doc. 1]. The Report sets
forth the relevant facts and legal standards which this court incorporates herein without a recitation.
The parties were notified of their right to file objections [Doc. 38 at 28]. Plaintiff timely
filed objections to the Report. [Doc. 50]. In conducting its review, the court therefore applies the
following standard:
The magistrate judge makes only a recommendation to the Court, to which any party
may file written objections...The Court is not bound by the recommendation of the
magistrate judge but, instead, retains responsibility for the final determination. The
Court is required to make a de novo determination of those portions of the report or
specified findings or recommendation as to which an objection is made. However,
the Court is not required to review, under a de novo or any other standard, the factual
or legal conclusions of the magistrate judge as to those portions of the Report and
Recommendation to which no objections are addressed. While the level of scrutiny
entailed by the Court's review of the Report thus depends on whether or not
objections have been filed, in either case, the Court is free, after review, to accept,
reject, or modify any of the magistrate judge's findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992)

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(citations omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report
and the objections. After careful review of the Report and objections thereto, the Court hereby
ACCEPTS the Report. [Doc. 38]. For the reasons set out in the Report, the Respondent’s
Motion for Summary Judgment [Doc. 21] is therefore GRANTED and Petitioner’s motions for
evidentiary hearings [Doc. 3 and 33] are DENIED.
CERTIFICATE OF APPEALABILITY
The law governing certificates of appealability 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
would find this court’s assessment of his constitutional claims is debatable or wrong and that any
dispositive procedural ruling by the district 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.
IT IS SO ORDERED.

United States District Judge

Greenville, South Carolina
March 21, 2012

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