Tolen v. Cartledge
ORDER adopting 41 Report and Recommendation; granting Respondent's 16 Motion for Summary Judgment; and dismissing Petitioner's petition with prejudice. A certificate of appealability is denied. Signed by Honorable R Bryan Harwell on 9/13/2016. (mwal)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Frank Tolen, Jr.,
Larry Cartledge, Warden, Perry
Civil Action No.: 1:15-cv-02503-RBH
Petitioner Frank Tolen, Jr., a state prisoner proceeding pro se, initiated this action by filing a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 See ECF No. 1. Respondent
answered and filed a motion for summary judgment. See ECF Nos. 15 & 16. The matter is now before
the Court for review of the Report and Recommendation (R & R) of United States Magistrate Shiva V.
Hodges, made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02 for the District of
South Carolina. See R & R, ECF No. 41. The Magistrate Judge recommends that the Court grant
Respondent’s motion for summary judgment and dismiss Petitioner’s habeas petition with prejudice.
R & R at 2, 28-29.
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 this Court.
See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo
determination of those portions of the R & R 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
Petitioner was represented by counsel at the time he filed the petition, but counsel subsequently filed an ex
parte motion to withdraw, which the Magistrate Judge granted. See ECF Nos. 1, 25, 28 & 33.
the matter with instructions. See 28 U.S.C. § 636(b)(1).
Neither party has filed objections to the R & R, and the time for doing so has expired.2 In the
absence of objections to the R & R, the Court is not required to give any explanation for adopting the
Magistrate Judge’s recommendations. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The
Court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, a
district court need not conduct de novo review, but instead must ‘only satisfy itself that there is no clear
error on the face of the record in order to accept the recommendation’” (quoting Fed. R. Civ. P. 72
advisory committee’s note)).
Furthermore, 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). When the district court denies relief on the
merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the
court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies
relief on procedural grounds, the prisoner must demonstrate (1) the dispositive procedural ruling is
debatable and (2) the petition states a debatable claim of the denial of a constitutional right. Slack, 529
U.S. at 484-85. In the instant case, the Court concludes that Petitioner has failed to make the requisite
showing of “the denial of a constitutional right.”
After a thorough review of the record in this case, the Court finds no clear error. Accordingly,
the Court adopts and incorporates by reference the R & R [ECF No. 41] of the Magistrate Judge. IT
Objections to the R & R were originally due by July 25, 2016. See ECF No. 41. Petitioner filed a motion
for an extension of time of thirty days to file objections, which the Court granted, thereby extending the objection
deadline to August 24, 2016. See ECF Nos. 43 & 44. To date, no objections have been received.
IS THEREFORE ORDERED that Respondent’s motion for summary judgment [ECF No. 16] is
GRANTED and that Petitioner’s habeas petition is DISMISSED WITH PREJUDICE. IT IS
FURTHER ORDERED that a certificate of appealability is DENIED because Petitioner has not made
“a substantial showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
Florence, South Carolina
September 13, 2016
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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