Galbreath v. Cartledge

Filing 30

ORDER adopting 27 Report and Recommendation and granting 17 MOTION for Summary Judgment. The petition is dismissed with prejudice. Signed by Honorable Richard M Gergel on 3/5/2015. (mwal)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

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Jerry Marvin Galbreath, #131740,

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Petitioner,

v.

Civil Action No: 1:14-11O-RMG

ORDER

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Larry Cartledge,

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Respondent.

This matter is before the Court on the Report and Recommendation ("R & R") of the
Magistrate Judge recommending that the Court grant respondent's Motion for Summary
Judgment. (Dkt. No. 27). Petitioner was advised of his right to file written objections to the
R & R within 14 days of service of the R & R and that a failure to file written objections would
result in limited review by the District Court and a waiver ofthe right to appeal from the decision
of the District Court. (Dkt. No. 27 at 41). Petitioner filed no written objections to the R & R.
Background

Petitioner is a state prisoner convicted by a state court jury of murder and possession of a
firearm during the commission of a violent crime. He was sentenced to concurrent sentences of
30 years on the murder charge and 5 years on the gun charge. He subsequently pursued
unsuccessfully a direct appeal and post-conviction relief regarding these convictions and
thereafter filed this petition for a writ of habeas corpus in the United States District Court. The
petition asserted 10 separate grounds for habeas relief. The Magistrate Judge, in an order
totaling 40 pages, carefully and thoroughly addressed each of the Petitioner's grounds, found

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each lacked legal merit and recommended that the Respondent's motion for summary judgment
be granted. (Dkt. No. 27). As previously indicated, Petitioner filed no objections to the R & R.
The Magistrate Judge makes only a recommendation to this Court. The recommendation
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). The Court makes a de novo
determination of those portions of the R&R to which specific objection is made and 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)(1).
Here, because no objection has been made, this Court "must 'only satisfy itself that there
is no clear error on the face of the record in order to accept the recommendation. '" Diamond v.
Colonial Life & Ace. Ins. Co., 416 F.3d 310,315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72

advisory committee note). Further, the Court may adopt the Magistrate Judge's analysis and
recommendation without explanation. See, Camby v. Davis, 718 F.2d 198,200 (4th Cir. 1983).
The Court has carefully reviewed the parties' briefing, the record in this case and the R &
R, and concludes that the Magistrate Judge correctly applied the relevant law to the operative
facts in this matter. The Court, therefore, ADOPTS the Magistrate Judge's Report and
Recommendation (Dkt. No. 27) as the order of this Court. Accordingly, Respondent's Motion
for Summary Judgment (Dkt. No. 17) is GRANTED. Therefore, this petition is dismissed with
prejudice.

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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. Section 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. Daniel, 429 U.S. 473,484 (2000); Rose v. Lee, 252

F .2d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of the certificate of
appealability has not been met. Therefore, a certificate of appealability is DENIED.
AND IT IS SO ORDERED.

March
2015
Charleston, South Carolina

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