Johnson v. State of SC, The

Filing 46

ORDER finding as moot 43 Motion for Judgment on the Pleadings; finding as moot 44 Motion for Judgment on the Pleadings; affirming 35 Report and Recommendation. The petition is dismissed as untimely under the AEDPA. It is further ordered that a certificate of appealability is denied. Signed by Honorable David C Norton on 3/9/2015.(eric, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA Talvin Johnson, #323094, ) ) Petitioner, ) ) vs. ) ) Warden, Lee Correctional Institution, ) ) Respondent. ) ____________________________________) C/A No. 2:14-cv-0768 DCN ORDER The above referenced case is before this court upon the magistrate judge's recommendation that the petition be dismissed as untimely under the AEDPA. This court is charged with conducting a de novo review of any portion of the magistrate judge's report to which a specific objection is registered, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). However, absent prompt objection by a dissatisfied party, it appears that Congress did not intend for the district court to review the factual and legal conclusions of the magistrate judge. Thomas v Arn, 474 U.S. 140 (1985). Additionally, any party who fails to file timely, written objections to the magistrate judge's report pursuant to 28 U.S.C. § 636(b)(1) waives the right to raise those objections at the appellate court level. United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984 ).1 No objections have been filed to the magistrate judge’s 1 In Wright v. Collins, 766 F.2d 841 (4th Cir. 1985), the court held "that a pro se litigant must receive fair notification of the consequences of failure to object to a magistrate judge's report before such a procedural default will result in waiver of the right to appeal. The notice must be 'sufficiently understandable to one in appellant's circumstances fairly to appraise him of what is required.'" Id. at 846. Plaintiff was advised in a clear manner that his objections had to be filed within ten (10) days, and he received notice of the consequences at the appellate level of his failure to object to the magistrate judge's report. report and recommendation. Petitioner filed two motions for judgment on the pleadings on March 5, 2015 (ECF Nos. 43 and 44). A de novo review of the record indicates that the magistrate judge's report accurately summarizes this case and the applicable law. Accordingly, the magistrate judge’s report and recommendation is AFFIRMED, and the petition is DISMISSED as untimely under the AEDPA. IT IS FURTHER ORDERED that all other motions are deemed MOOT. 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). AND IT IS SO ORDERED. David C. Norton United States District Judge March 9, 2015 Charleston, 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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