Slocumb v. Riley

Filing 22

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 16 Motion to Dismiss. The federal Petition in this case is dismissed, without prejudice, for the failure of Petitioner to exhaust his state court remedies. A certificate of appealability is denied. Signed by Honorable Bruce Howe Hendricks on 7/21/2017.(cwhi, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA Conrad L. Slocumb, a/k/a Conrad Lamont Slocumb, ) Civil Action No.: 3:16-3769-BHH ) ) Petitioner, ) ) OPINION AND ORDER v. ) ) Warden Tim Riley, SCDC, ) ) Respondent. ) __________________________________ ) Petitioner Conrad L. Slocumb (“Petitioner”), proceeding pro se, filed this habeas relief action pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this matter was referred to United States Magistrate Judge Bristow Marchant, for pre-trial proceedings and a Report and Recommendation (“Report”). On June 6, 2017, Respondent Warden Tim Riley, SCDC (“Respondent”), filed a motion to dismiss. (ECF No. 16.) Since Petitioner is pro se in this matter, the Court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) on June 12, 2017, advising Petitioner of the importance of a dispositive motion and of the need for him to file an adequate response to Respondent’s motion. (ECF No. 17.) In that order, Petitioner was advised of the possible consequence of dismissal if he failed to respond adequately. Petitioner filed a response in opposition to the motion for summary judgment. (ECF No. 19.) Magistrate Judge Marchant considered the parties’ submissions and the record in this case, and recommended that this federal Petition be dismissed, without prejudice, for failure of the Petitioner to exhaust his state court remedies. (ECF No. 20.)1 1 The scrivener’s error of Respondent’s name in the caption of the Report does not affect the correct procedural history, discussion, and analysis as it pertains to this case as captioned above. 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. See Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of any portion of the Report and Recommendation of the Magistrate Judge to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). The Court reviews the Report and Recommendation only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “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”) (citation omitted). The Magistrate Judge advised Petitioner of his right to file specific objections to the Report. (ECF No. 31-1.) Petitioner filed no objections and the time for doing so expired on February 21, 2017. After a thorough review of the record of this matter, the applicable law, and the Report of the Magistrate Judge, the Court finds no clear error. Accordingly, the Court adopts and incorporates the Report and Recommendation (ECF No. 20) by reference into this order. It is therefore ORDERED that Respondent’s motion to dismiss (ECF No. 16) is GRANTED. The federal Petition in this case is dismissed, without prejudice, for the failure of Petitioner to exhaust his state court remedies. 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. -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 to be debatable or wrong and that any dispositive procedural ruling by this 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 Greenville South Carolina July 21, 2017 -3-

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