Gilliard v. Stirling

Filing 29

ORDER adopting and incorporating 27 Report and Recommendation; granting Respondent's 21 Motion for Summary Judgment; and dismissing the action with prejudice. A certificate of appealability is denied. Signed by Honorable Timothy M Cain on 11/7/2017. (mwal)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA AIKEN DIVISION Kandy Gilliard, Petitioner, v. Bryan P. Stirling, Respondent. _______________________________ ) ) ) ) ) ) ) ) ) ) C/A No. 1:17-1029-TMC ORDER Petitioner Kandy Gilliard, a state prisoner, filed this action pursuant to 28 U.S.C. § 2254. On October 17, 2017, Magistrate Judge Shiva V. Hodges issued a Report and Recommendation ("Report") recommending that the Respondent’s Motion for Summary Judgment (ECF No. 21) be granted, and the Petition be dismissed with prejudice. (ECF No. 27).1 Plaintiff was advised of his right to file objections to the Report (ECF No. 27 at 12). However, Plaintiff has not filed any objections to the Report and the time for doing so has expired. The Report has no presumptive weight and the responsibility to make a final determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 27071 (1976). In the absence of objections, this court is not required to provide an explanation for adopting the Report. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in the absence of a timely filed objection, a district court need not conduct a 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.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note). Furthermore, failure to file 1 In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2), D.S.C., all pre-trial proceedings were referred to a magistrate judge. specific written objections to the Report results in a party’s waiver of the right to appeal the district court’s judgment based upon that recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). After a thorough review of the Report and the record in this case, the court adopts the Magistrate Judge’s Report (ECF No. 27) and incorporates it herein. Therefore, Respondent’s Motion for Summary Judgment (ECF No. 21) is GRANTED, and this action is DISMISSED with prejudice. 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). A prisoner satisfies this standard by demonstrating that reasonable jurists would find both that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In the instant matter, the court finds that Petitioner has failed to make "a substantial showing of the denial of a constitutional right." Accordingly, the court declines to issue a certificate of appealability IT IS SO ORDERED. s/ Timothy M. Cain United States District Judge Anderson, South Carolina November 7, 2017 2

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