Smith v. South Carolina, State of

Filing 59

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts and incorporates the Report and Recommendation (ECF No. 50 ) by reference into this order. It is therefore ORDERED that the respondent's motion for summary judgment 38 be GRANTED and the petition for writ of habeas corpus be DISMISSED with prejudice. A certificate of appealability is denied. Signed by Honorable Bruce Howe Hendricks on 10/30/2014. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Jerrod A. Smith,

) Civil Action No.: 4:13-3090-BHH
)
Petitioner, )
)
v.
)
OPINION AND ORDER
)
Warden, Lieber Correctional Institution,
)
)
Respondent. )
__________________________________ )
The petitioner Jerrod A. Smith (“the petitioner”), proceeding pro se, filed this habeas
relief action pursuant to 28 U.S.C. § 2254. (ECF No. 1.) This matter is before the Court
on the respondent’s motion for summary judgment. (ECF No. 38.) 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 Thomas E. Rogers, III, for pre-trial proceedings and a
Report and Recommendation (“Report”). On August 8, 2014, Magistrate Judge Marchant
issued a Report recommending that the respondent’s motion for summary judgment be
granted and the petition for writ of habeas corpus be dismissed, with prejudice. (ECF No.
50.) The Magistrate Judge advised the petitioner of the procedures and requirements for
filing objections to the Report and the serious consequences if he failed to do so. (ECF No.
50-1.) The petitioner was granted an extension of time to file objections (ECF Nos. 42, 43),
but has filed no objections and the time for doing so expired on October 22, 2014.
The Magistrate Judge makes only a recommendation to the district 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, 96 S.Ct. 549,
46 L.Ed.2d 483 (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).
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. 50) by reference into
this order.
It is therefore ORDERED that the respondent’s motion for summary judgment be
GRANTED and the petition for writ of habeas corpus be DISMISSED with prejudice.
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.
(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 is debatable or wrong
and that any dispositive procedural ruling by the district court is likewise debatable. See
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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
October 30, 2014
Greenville, South Carolina

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