Gilbert v. Cartledge

Filing 26

ORDER adopting 23 Report and Recommendation of Magistrate Judge Bruce Howe Hendricks, granting 11 Motion for Summary Judgment. A certificate of appealability is denied. Signed by Honorable Mary G Lewis on 11/20/12.(hhil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Charles Gilbert, Jr.,

) Civil Action No.: 2:12-663-MGL
)
Petitioner, )
)
v.
)
OPINION AND ORDER
)
Warden Cartledge
)
)
Respondent. )
__________________________________ )
Petitioner proceeding pro se, filed this habeas relief action pursuant to 28 U.S.C. §
2254. (ECF No. 1). This matter is before the court on Respondent’s motion for summary
judgment. (ECF No. 11.) In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(c), DSC, this matter was referred to United States Magistrate Judge Bruce
Howe Hendricks for pre-trial proceedings and a Report and Recommendation. On October
26, 2012, Magistrate Judge Hendricks issued a Report recommending that Respondent’s
motion for summary judgment be granted. (ECF No. 23.) The Magistrate Judge advised
Plaintiff of the procedures and requirements for filing objections to the Report and
Recommendation and the serious consequences if he failed to do so. (ECF 23 at 12.)
Plaintiff has filed no objections and the time for doing so expired on November 13, 2012.
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. See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549,
46 L.Ed.2d 483 (1976). The court is charged with making a de novo determination of any
portion of the Report and Recommendation of the Magistrate Judge to which a specific
objection is made. The court may accept, reject, or modify, in whole or in part, the

recommendation made by the Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. § 636(b). The court reviews the Report and
Recommendation only for clear error in the absence of an objection. See Diamond v.
Colonial Life & Accident 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 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.”) (citation omitted).
After a thorough review of the record of this matter, the applicable law, and the
Report and Recommendation of the Magistrate Judge, the court finds no clear error.
Accordingly, the court adopts and incorporates the Report and Recommendation (ECF No.
23) by reference into this order.
It is therefore ORDERED that the Respondent’s motion for summary judgment is
GRANTED and the petition 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 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 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 Cir.2001). In this case, the legal standard for
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the issuance of a certificate of appealability has not been met. Therefore, a certificate of
appealability is denied.
IT IS SO ORDERED.

s/Mary G. Lewis
United States District Judge
November 20, 2012
Spartanburg, South Carolina

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