Hendrix v. Ozmint

Filing 30

ORDER ADOPTING THE REPORT AND RECOMMENDATION, granting respondent's motion for summary judgment, granting a certificate of appealability, for 26 Report and Recommendations. Signed by Honorable Terry L Wooten on September 16, 2010. (kbos)

Hendrix v. Warden Broad River Correctional Institution

Doc. 30

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

Calvin Hendrix, # 231316,

) ) Petitioner, ) ) vs. ) ) Warden Broad River Correctional Institution, ) ) Respondent. ) __________________________________________)

C.A. No. 3:09-2275-TLW-JRM

O RD ER

The pro se petitioner, an inmate at the South Carolina Department of Corrections, seeks habeas corpus relief under Title 28, United States Code, Section 2254. (Doc. # 1). This matter is now before the undersigned for review of the Report and Recommendation ("the Report") filed by United States Magistrate Judge Joseph R. McCrorey, to whom this case had previously been assigned pursuant to 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2) (D.S.C.). In his Report, Magistrate Judge McCrorey recommends that the respondent's motion for summary judgment be granted, and that this petition be dismissed without an evidentiary hearing. (Doc. # 26). Petitioner has filed objections to the Report. (Doc. # 29). In conducting this review, the Court applies the following standard: The magistrate judge makes only a recommendation to the Court, to which any party may file written objections. . . . The Court is not bound by the recommendation of the magistrate judge but, instead, retains responsibility for the final determination. The Court is required to make a de novo determination of those portions of the report or specified findings or recommendation as to which an objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the Report and Recommendation to which no objections are addressed. While the level of scrutiny entailed by the Court's review of the Report thus depends on whether or not 1

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objections have been filed, in either case, the Court is free, after review, to accept, reject, or modify any of the magistrate judge's findings or recommendations. Wallace v. Housing Auth. of the City of Columbia, 791 F.Supp. 137, 138 (D.S.C. 1992) (citations omitted). In light of this standard, the Court has reviewed, de novo, the Report and the objections thereto. The Court accepts the Report. This Court notes that although the Petition is barred by the statute of limitations, the report also analyses the merits of the ineffective assistance of counsel claim which was properly exhausted. THEREFORE, IT IS HEREBY ORDERED that the Magistrate Judge's Report is ACCEPTED (Doc. # 26), petitioner's objections are OVERRULED (Doc. # 29); and respondent's motion for summary judgment is GRANTED (Doc. # 14) and this petition is DISMISSED. The Court has reviewed this petition in accordance with Rule 11 of the Rules Governing Section 2254 Proceedings and 28 U.S.C. § 2253. Applying the provisions set forth at 28 U.S.C. § 2253 (c), this Court concludes that it is appropriate to issue a certificate of appealability as to all issues raised herein IT IS SO ORDERED. s/ Terry L. Wooten TERRY L. WOOTEN UNITED STATES DISTRICT JUDGE

September 16, 2010 Florence, South Carolina

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