Caldwell v. McCall

Filing 36

ORDER ADOPTING 32 REPORT AND RECOMMENDATION. Respondent's 26 Motion for Summary Judgment is granted. A certificate of appealability is denied. Signed by Honorable Richard M Gergel on 10/29/2013. (abuc)

IN THE UNITED STATES DISTRICf COURT
FOR THE DISTRICf OF SOUTH CAROLINA
Christopher Caldwell, #327650,

Petitioner,

v.
Michael McCall,
Respondent.

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No. 1:I3-cv-1180-RMG

ORDER

This matter is before the Court on the Report and Recommendation of the Magistrate
Judge ("R&R") recommending that this Court grant Respondent's motion for summary
judgment. (Okt. No. 32). For the reasons set forth below, the Court agrees with and adopts the

R&R as the order of the Court.
Background

Petitioner, a state prisoner proceeding pro se and in forma pauperis, filed this petition for
a writ of habeas corpus pursuant to 28 U.s.C. § 2254. Pursuant to 28 U.S.C. § 636(b) and Local
Civil Rule 73.02(B)(2)(c) DSC, this matter was automatically referred to a Magistrate Judge for
pretrial proceedings. On July 30, 2013, Respondent filed a motion for summary judgment. (Dkt.
No. 26). Petitioner then filed a response to the motion. (Okt. No. 31). The Magistrate judge

then issued the present R&R recommending the Court grant Respondent's motion for surrunary
judgment. (Dkt. No. 32). Plaintiff then failed to file timely objections to the R&R.

Legal Standard

The Magistrate Judge makes only a recommendation to this Court. The reconunendation
has no presumptive weight, and the responsibility for making a final determination remains with

this Court. Mathews v. Weber,423 U.S. 261 , 270-71 (1976). This Court is charged with making

a de novo determination of those portions of the R&R to which specific objection is made.
Additionally, the Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(I). This Court may also
"receive further evidence or reconunit the matter to the magistrate judge with instructions." Jd.
In reviewing these pleadings, the Court is mindful of Plaintiffs pro se status. This Court
is charged with liberally construing the pleadings of a pro se litigant. See, e.g., De'Lonta v.

Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The requirement of a liberal construction does not
mean, however, that the Court can ignore a plaintifrs clear failure to allege facts that set forth a
cognizable claim, or that a court must assume the existence of a genuine issue of material fact
where none exists. See United States v. Wilson, 699 F.3d 789,797 (4th Cir. 2012).
Discussion
After review of the record and the R&R, the Court finds the Magistrate Judge applied
sound legal principles to the facts of this case and correctly detennined that the Court should
grant Respondent's motion for summary judgment. The Magistrate Judge properly concluded
that Petitioner was procedurally barred from raising grounds two through four of his petition in
this proceeding and that Petitioner failed to establish in ground one that his guilty plea was a
result of the ineffective assistance of his trial counsel.
Conclusion
For the reasons set forth above, the Court agrees with and wholly adopts the R&R as the
order of the Court. (Dkt. No. 32). Accordingly, the Court GRANTS Respondent's motion for
summary judgment. (Dkt. No. 26).

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Certificate of Appealability

The governing law 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 the standard by demonstrating that reasonable jurists

would find this court's assessment of his constitutional claims debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable.

See Miller-EI 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. 200 I). In this case, the legal standard for the issuance of a certificate
of appealability has not been met. Therefore, a certificate of appealability is DENIED.

AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Court Judge
October L7 , 20 J3
Charleston, South Carolina

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