Elkins v. Cartledge

Filing 44

ORDER adopting 37 Report and Recommendation. Respondent's 26 Motion for Summary Judgment is granted and the petitioner's petition for a writ of habeas corpus is dismissed with prejudice. Signed by Honorable Bruce Howe Hendricks on 9/8/2015. (mwal)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
James Willie Elkins, Jr., #241002

Petitioner, Civil Action No.: 1:14-cv-1549-BHH
vs.
Opinion and Order

Warden Leroy Cartledge,

Respondent.

The petitioner James Willie Elkins, Jr., (“the petitioner” or “Elkins”) proceeding
pro se, filed this writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the within action
was referred to United States Magistrate Judge Shiva V. Hodges for pretrial handling
and a Report and Recommendation (“Report”).

Magistrate Judge Hodges

recommends that the respondent’s motion for summary judgment be granted and the
petitioner’s petition for writ of habeas corpus be denied with prejudice. (ECF No. 37.)
The Report and Recommendation sets forth in detail the relevant facts and standards
of law on this matter and the Court incorporates them without recitation.
BACKGROUND
The petitioner filed this action against the respondent alleging, inter alia,
ineffective assistance of counsel. On April 27, 2015, the Magistrate Judge issued a
Report; and on June 5, 2015, the petitioner filed his Objections. (ECF No. 42.) The
Court has reviewed the objections, but finds them to be without merit. Therefore, it will
enter judgment accordingly.

STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court. The
recommendation has no presumptive weight.

The responsibility to make a final

determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 270–
71, 96 S.Ct. 549, 46 L.Ed.2d 483 (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 with instructions. 28 U.S.C. § 636(b)(1).
The court is obligated to conduct a de novo review of every portion of the Report
to which specific objections have been filed. Id. However, the court need not conduct
a de novo review when a party makes only “general and conclusory objections that do
not direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982) ( “[D]e novo
review [is] unnecessary in . . . situations when a party makes general and conclusory
objections that do not direct the court to a specific error in the magistrate’s proposed
findings and recommendation.”). The court reviews only for clear error in the absence
of a specific objection. Furthermore, in the absence of a timely filed, specific objection,
the Magistrate Judge’s conclusions are reviewed only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). 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)(1). This Court
may also “receive further evidence or recommit the matter to the magistrate judge with
instructions.” Id.

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DISCUSSION
The petitioner’s objection fails to direct the Court to any error in the Magistrate
Judge’s analysis. Rather, the petitioner merely reasserts arguments that he made in
his response in opposition to the motion for summary judgment, arguments that were
properly considered and rejected by the Magistrate Judge.

Indeed, the petitioner

specifically indicates that he is seeking to “verbatim reargue” the grounds set forth in
his earlier submission. (ECF No. 42.) The Court finds no error in the Magistrate
Judge’s Report and overrules the objection. The Report is adopted and incorporated
herein by reference.
CONCLUSION
After a thorough review of the Report, the record, and the applicable law, the
Court finds that the petitioner’s objections are without merit.

Accordingly, for the

reasons stated above and by the Magistrate Judge, the Court overrules the petitioner’s
objections and adopts the Report and incorporates it herein. It is therefore
ORDERED that the respondent’s motion for summary judgment (ECF No. 26.) is
GRANTED and the petitioner’s petition for a writ of habeas corpus is dismissed, with
prejudice.
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 in paragraph (2).

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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 Circ.2011).
In this case, the legal standard for the issuance of a certificate of appealability has not
been met. Therefore, a certificate of deniability is DENIED.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge

September 8, 2015
Greenville, South Carolina
*****
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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