Godinez v. McFadden

Filing 37

ORDER adopting 32 Report and Recommendation of Magistrate Judge Bruce Howe Hendricks; granting 20 Motion for Summary Judgment. It is further ordered that a certificate of appealability is denied. Signed by Honorable Joseph F Anderson, Jr on 1/24/2014.(ssam, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Fito Godinez,

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Petitioner,
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v.
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Joseph McFadden, Warden,
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Respondent.
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______________________________________ )

C/A No. 2:12-3612-JFA-BHH

ORDER

The pro se petitioner, Fito Godinez, is an inmate with the South Carolina Department
of Corrections. He brings this action pursuant to 28 U.S.C. § 2254 challenging his state court
conviction for murder and burglary. Petitioner raises claims of ineffective assistance of his
defense counsel and errors by the Post Conviction Relief (PCR) court.
The Magistrate Judge assigned to this action1 has prepared a comprehensive Report
and Recommendation and opines that the respondent’s motion for summary judgment2
should be granted. The Report sets forth in detail the relevant facts and standards of law on
this matter, and the court incorporates such without a recitation and without a hearing.

1

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 and Recommendation 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. See 28 U.S.C. § 636(b)(1).
2

An order was issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying petitioner
of the summary dismissal procedure and possible consequences if he failed to adequately respond to the
motion for summary judgment. Petitioner responded to the motion.

1

The petitioner was advised of his right to file objections to the Report and
Recommendation which was entered on the docket on December 2, 2013. Neither party filed
objections to the Report, and the time within which to do so has expired. In the absence of
specific objections to the Report of the Magistrate 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 adopts the Magistrate Judge’s Report and incorporates it herein
by reference. Accordingly, the respondent’s motion for summary judgment (ECF No. 20)
is granted.
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).3
IT IS SO ORDERED.

January 24, 2014
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

3

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 defendant has failed to make “a substantial showing
of the denial of a constitutional right.”

2