Bryan v. McCall

Filing 54

ORDER RULING ON REPORT AND RECOMMENDATIONS. The Court ACCEPTS the Report 46 . Therefore, the respondents motion for summary judgment is GRANTED 17 , and the petition is DISMISSED. Additionally, all other motions filed by the petitioner are hereby deemed MOOT. 23 , 24 , 25 , 26 , 37 , 38 , 39 , 40 , 42 , 43 , 48 , and 49 . Signed by Honorable Terry L Wooten on 07/21/2010. (dsto)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION T. Terrell Bryan, ) ) Petitioner, ) ) vs. ) ) Warden Michael McCall, ) ) Respondent. ) ) ___________________________________ ) Civil Action No. 4:09-2117-TLW-TER ORDER Petitioner, T. Terrell Bryan ("petitioner"), brought this civil action, pro se, pursuant to 28 U.S.C. 2254 on August 11, 2009. (Doc. #1). This matter now comes before this Court for review of the Report and Recommendation (Athe Report@) filed by United States Magistrate Thomas E. Rogers, III, to whom this case had previously been assigned. In the Report, the Magistrate Judge recommends that the Respondent's motion for summary judgment be granted in its entirety and the petition be dismissed as time barred by the statute of limitations. (Doc. # 46). Objections to the Report were filed on June 14, 2010. (Doc. # 53). 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 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 the standard set forth in Wallace, the Court has reviewed, de novo, the Report and the objections. After careful review of the Report and objections thereto, the Court ACCEPTS the Report. (Doc. # 46). Therefore, the respondent's motion for summary judgment is GRANTED, (Doc. # 17), and the petition is DISMISSED. Additionally, all other motions filed by the petitioner are hereby deemed MOOT. (Docs. # 23, 24, 25, 26, 37, 38, 39, 40, 42, 43, 48, and 49). The Court has reviewed this petition in accordance with Rule 11 of the Rules Governing Section 2254 Proceedings. The Court concludes that it is not appropriate to issue a certificate of appealability as to the issues raised herein. Petitioner is advised that he may seek a certificate from the Fourth Circuit Court of Appeals under Rule 22 of the Federal Rules of Appellate Procedure. IT IS SO ORDERED. s/Terry L. Wooten____ TERRY L. WOOTEN United States District Judge July 21, 2010 Florence, South Carolina

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