Breaker v. South Carolina, State of et al

Filing 35

ORDER RULING ON 31 REPORT AND RECOMMENDATION It is hereby ordered that the within action be dismissed for lack of prosecution, and a certificate of appealability is denied. Signed by Honorable Patrick Michael Duffy on 09/22/2017. (egra, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

D’Andrik Lamar Breaker, #330260,
Petitioner,
vs.
Tim Riley,
Respondent.

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ORDER
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This matter is before the court upon the magistrate judge's recommendation that the within
action be dismissed pursuant to Fed.R.Civ.Proc. 41(b). Because petitioner is pro se, this matter was
referred to the magistrate judge.1
This Court is charged with conducting a de novo review of any portion of the magistrate
judge's report to which a specific objection is registered, and may accept, reject, or modify, in whole
or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). However, absent
prompt objection by a dissatisfied party, it appears that Congress did not intend for the district court
to review the factual and legal conclusions of the magistrate judge. Thomas v Arn, 474 U.S. 140
(1985). Additionally, any party who fails to file timely, written objections to the magistrate judge's
report pursuant to 28 U.S.C. § 636(b)(1) waives the right to raise those objections at the appellate
court level. United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).2 No objections have been filed

1

Pursuant to the provisions of Title 28 United States Code, § 636(b)(1)(B), and Local Rule
73.02 D.S.C., the magistrate judge is authorized to review all pretrial matters and submit
findings and recommendations to this Court.
2

In Wright v. Collins, 766 F.2d 841 (4th Cir. 1985), the court held "that a pro se litigant must
receive fair notification of the consequences of failure to object to a magistrate judge's report

to the magistrate judge's report.
A review of the record indicates that the magistrate judge's report accurately summarizes this
case and the applicable law. Finding no error in the report, this court adopts the report and
recommendation and incorporates it into this order.
Lastly, on December 1, 2009, the Rules Governing Section 2254 Cases in the United States
District Courts were amended to require a District Court to issue or deny a certificate of
appealability when a final ruling on a habeas petition is issued. 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 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 debateable. 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. Therefore, a certificate of appealability is denied.
For the reasons articulated by the magistrate judge, it is hereby ordered that the within
action be dismissed for lack of prosecution, and a certificate of appealability is DENIED.

before such a procedural default will result in waiver of the right to appeal. The notice must be
'sufficiently understandable to one in appellant's circumstances fairly to appraise him of what is
required.'" Id. at 846. Plaintiff was advised in a clear manner that his objections had to be filed
within ten (10) days, and he received notice of the consequences at the appellate level of his
failure to object to the magistrate judge's report.
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AND IT IS SO ORDERED.

September 22, 2017
Charleston, South Carolina

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