Cannon v. Nelson

Filing 34

ORDER adopting the 29 Report and Recommendation. Because the Undersigned adopts the recommendation to dismiss for failure to prosecute, Respondent's Motion for Summary Judgment need not be addressed and is dismissed a s moot. (ECF No. 18 ). Additionally, Petitioner's Motion to Suspend Habeas Corpus is denied. (ECF No. 3 ).Therefore, this action is dismissed with prejudice. It is further ordered that a certificate of appealability is denied because Petitioner has failed to make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).2 Signed by Honorable Joseph F. Anderson, Jr. on 1/17/2023. (lbak)

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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Dontelle D. Cannon,

C/A No. 1:22-cv-1066-JFA-SVH
Petitioner,

v.

ORDER

Kenneth Nelson, Warden S.C.D.C.,
Respondent.

Petitioner Dontelle D. Cannon, proceeding pro se, filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b) and
Local Civil Rule 73.02(B)(2) (D.S.C.), the case was referred to the Magistrate Judge for
initial review.
On April 1, 2022, Petitioner filed the instant Petition and a Motion to Suspend
Habeas Corpus and Grant Leave to Return to the Lower Court to Exhaust on Unexhausted
Grounds. (ECF Nos. 1 & 3). On July 26, 2022, Respondent Warden Kenneth Nelson filed
a Motion for Summary Judgment. (ECF No. 18). On this same day, the Magistrate Judge
issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising
Petitioner of the dismissal and summary judgment procedures and the possible
consequences if he failed to respond. (ECF No. 19). Petitioner requested and the Magistrate
Judge granted Petitioner’s first and second motions for extension of time, making his
Response in Opposition due by November 25, 2022. (ECF Nos. 22 & 26).
Notwithstanding the specific warning and instructions set forth in the court’s
Roseboro order, Petitioner failed to respond to the motion. Thereafter, the Magistrate Judge
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assigned to this action 1 issued a thorough Report and Recommendation (“Report”). (ECF
No. 29). Within the Report, the Magistrate Judge recommends this action be dismissed
with prejudice for Petitioner’s failure to prosecute pursuant to Federal Rule of Civil
Procedure 41. The Report sets forth, in detail, the relevant facts and standards of law on
this matter, and this Court incorporates those facts and standards without a recitation.
Petitioner was advised of his right to object to the Report, which was entered on the
docket on December 5, 2022. Id. The Magistrate Judge required Petitioner to file objections
by December 19, 2022. Petitioner failed to file objections or otherwise address
Respondent’s motion for summary judgment. Thus, this matter is ripe for review.
A district court is only required to conduct a de novo review of the specific portions
of the Magistrate Judge’s Report to which an objection is made. See 28 U.S.C. § 636(b);
Fed. R. Civ. P. 72(b); Carniewski v. W. Virginia Bd. of Prob. & Parole, 974 F.2d 1330 (4th
Cir. 1992). In the absence of specific objections to portions of the Magistrate’s Report, this
Court is not required to give an explanation for adopting the recommendation. See Camby
v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
After carefully reviewing the applicable laws, the record in this case, and the Report,
this Court finds the Magistrate Judge correctly concluded that this action should be
dismissed with prejudice due to Petitioner’s failure to respond in any way to the instant
Motion or the Report. Accordingly, this Court adopts the Magistrate Judge’s Report and

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The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02(B)(2)(d) (D.S.C.). 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 the Court. Mathews v. Weber, 423 U.S. 261 (1976).
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Recommendation (ECF No. 29). Because the Undersigned adopts the recommendation to
dismiss for failure to prosecute, Respondent’s Motion for Summary Judgment need not be
addressed and is dismissed as moot. (ECF No. 18). Additionally, Petitioner’s Motion to
Suspend Habeas Corpus is denied. (ECF No. 3).
Therefore, this action is dismissed with prejudice. It is further ordered that a
certificate of appealability is denied because Petitioner has failed to make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 2
IT IS SO ORDERED.

January 17, 2023
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

2

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); Slack v. McDaniel, 529 U.S. 473, 484 (2000); 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.”
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