Downer v. Reynolds

Filing 31

ORDER adopting 25 Report and Recommendation of Magistrate Judge Mary Gordon Baker; granting 16 Motion for Summary Judgment. Petitioner's Petition for Writ of Habeas Corpus (ECF No. 1 ) is DISMISSED, with prejudice. In this case, the legal standard for the issuance of a certificate of appealability has not been met. Signed by Honorable J Michelle Childs on 8/27/2015.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Fred Downer,

)
)
Plaintiff,
)
)
v.
)
)
C. Reynolds,
)
)
Defendant.
)
____________________________________)

Civil Action No. 2:14-cv-03992-JMC

ORDER

Petitioner, proceeding pro se, brought this action seeking relief pursuant to 28 U.S.C. §
2254. This matter is before the court for review of the Magistrate Judge's Report and
Recommendation (“Report”) (ECF No. 25), filed on July 6, 2015, recommending that
Respondent’s Motion for Summary Judgment (ECF No. 16) be granted and Petitioner’s Petition
for Writ of Habeas Corpus (ECF No. 1) be dismissed, with prejudice. The Report sets forth in
detail the relevant facts and legal standards on this matter, and the court incorporates the
Magistrate Judge’s recommendation herein without a recitation.
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court.

The recommendation has no presumptive weight.

The

responsibility to make a final determination remains with this court. See 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 objections are made, and the court
may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation or
recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).

1

Petitioner was advised of his right to file an objection to the Report “within fourteen (14)
days of the date of service” or by July 23, 2015. (ECF No. 25.) Petitioner was thereafter granted
an extension until August 25, 2015 to file an objection to the Report. (ECF No. 29.) Petitioner
filed no objections.
In the absence of objections to the Magistrate Judge’s Report, this court is not required to
provide an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198,
199 (4th Cir. 1983). Rather, “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.’” Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s
note). Furthermore, failure to file specific written objections to the Report results in a party’s
waiver of the right to appeal from the judgment of the District Court based upon such
recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985).
After a thorough review of the Report and the record in this case, the court finds the
Report provides an accurate summary of the facts and law. The court ADOPTS the Magistrate
Judge’s Report and Recommendation (ECF No. 25).

It is therefore ORDERED that

Respondent's Motion for Summary Judgment (ECF No. 16) is GRANTED and Petitioner's
Petition for Writ of Habeas Corpus (ECF No. 1) is DISMISSED, with prejudice.

CERTIFICATE OF APPEALABILITY
The law governing certificates of appealability 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.

2

(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 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.
IT IS SO ORDERED.

United States District Judge
August 27, 2015
Charleston, South Carolina

3