Green v. McCall
OPINION AND ORDER adopting 40 Report and Recommendation; granting 30 Motion for Summary Judgment. The petitioner's habeas petition is dismissed, with prejudice. A certificate of appealability is denied. Signed by Honorable Bruce Howe Hendricks on 3/27/2015.(ssam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Elijah Green, #326911,
) Civil Action No.: 2:13-659-BHH
OPINION AND ORDER
The petitioner Elijah Green (“the petitioner” or “Green”), proceeding pro se, filed this
writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In accordance with 28
U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the within action was referred to United
States Magistrate Judge Wallace W. Dixon for pretrial handling and a Report and
Recommendation. Magistrate Judge Dixon recommends that the respondent’s motion for
summary judgment be granted and the petitioner’s habeas petition be dismissed with
prejudice. (ECF No. 40.) The Report and Recommendation sets forth in detail the relevant
facts and standards of law on this matter and the Court incorporates them without
The petitioner filed this action against the respondent Warden McCall (“the
respondent”) on March 7, 2013.1 On July 1, 2014, the Magistrate Judge issued a Report
and Recommendation recommending that the respondent’s motion for summary judgment
This filing date reflects that the envelope containing the petition was stamped as having
been received on March 7, 2013, by the Lee CI mailroom. (ECF No.1-2.) Houston v. Lack, 487
U.S. 266 (1988) (holding prisoner's pleading is considered filed when given to prison authorities
for forwarding to the district court).
be granted and the petitioner’s habeas petition be dismissed with prejudice. (ECF No. 40
at 19.) On July 16, 2014, the Clerk of Court entered the petitioner’s Objections. (ECF No.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the court. The
recommendation has no presumptive weight.
The responsibility to make a final
determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270–71 (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 with instructions. 28 U.S.C. § 636(b)(1). However, the court need not
conduct a de novo review when a party makes only “general and conclusory objections that
do not direct the court to a specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). In the absence
of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only
for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
As noted above, the petitioner his filed objections to the Magistrate Judge's Report
and Recommendation (Report), which the Court has carefully reviewed. However, the
petitioner’s objections, while verbose, provide no basis for this Court to deviate from the
Magistrate Judge's recommended disposition. Therefore, the Court will enter judgment
First, the petitioner failed to file any specific objections to the Report, and the Court
has found no clear error on the face of the record. (ECF No. 40 at 20.) Second, the
petitioner generally does nothing more in his objections than reargue issues that the
Magistrate Judge has already considered and rejected. The Court finds that the Magistrate
Judge fairly and accurately summarized the facts and applied the correct principles of law.
Therefore, the Court will overrule the petitioner’s objections to the Report.
For the reasons stated above and by the Magistrate Judge, the Court overrules the
petitioner’s objections and adopts and incorporates by reference the Magistrate Judge’s
Report and Recommendation. Accordingly, the Report and Recommendation is
incorporated herein by reference. It is therefore
ORDERED that respondent’s motion for summary judgment (ECF No. 30) is
GRANTED, and the petitioner’s habeas 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
the issuance of a certificate of appealability has not been met. Therefore, a certificate of
appealability is denied.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
March 27, 2015
Greenville, South Carolina
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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