Fickens v. Cartledge

Filing 32

ORDER adopting 30 Report and Recommendation of Magistrate Judge Bruce Howe Hendricks granting 26 Motion to Dismiss and dismissing 14 Motion for Summary Judgment. It is further ordered that a certificate of appealability is denied. Signed by Honorable Joseph F Anderson, Jr on 6/4/13.(hhil, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
George W. Fickens,
Petitioner,
vs.
Larry Cartledge, Warden,
Respondent.
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C/A No. 2:12-2618-JFA-BHH

ORDER

The pro se petitioner, George W. Fickens, brings this action pursuant to 28 U.S.C.
§ 2254 challenging his state court conviction. The respondent has filed a motion for
summary judgment and the petitioner has responded with his own motion to dismiss.
The Magistrate Judge assigned to this action1 has prepared a Report and
Recommendation wherein she opines that the court should dismiss this action under Rule
41(a) of the Federal Rules of Civil Procedure. The Report sets forth in detail the relevant
facts and standards of law on this matter, and the court incorporates such without a recitation.
The parties were advised of their right to file objections to the Report and
Recommendation, which was entered on the docket on May 14, 2013, however neither party
has filed objections. In the absence of specific objections to the Report of the Magistrate

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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. 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). The court is charged with making a de novo determination of those
portions of the Report 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 the matter to the Magistrate
Judge with instructions. 28 U.S.C. § 636(b)(1).

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Judge, this court is not required to give any explanation for adopting the recommendation.
See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
After a careful review of the record, the applicable law, and the Report and
Recommendation, the court finds the Magistrate Judge’s recommendation proper and
incorporated herein by reference. Accordingly, petitioner’s motion to dismiss (ECF No. 26)
is granted and this action is dismissed pursuant to Fed. R. Civ. P. Rule 41(a)(2).
Respondent’s motion for summary judgment (ECF No. 14) is dismissed.
IT IS FURTHER ORDERED that a certificate of appealability is denied because the
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.

Joseph F. Anderson, Jr.
United States District Judge

June 4, 2013
Columbia, South Carolina

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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) (West 2009). 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 the petitioner has failed to make “a substantial showing
of the denial of a constitutional right.”

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