Moses v. McFadden

Filing 26

ORDER RULING ON REPORT AND RECOMMENDATION: The Report and Recommendation 14 of the Magistrate Judge is adopted and incorporated by reference. Therefore, it is ORDERED that Petitioner's motion to amend 24 is GRANTED an d the Clerk is DIRECTED to correct the docket to reflect Warden Willie Eagleton as Respondent. IT IS FURTHER ORDERED that Respondent's Motion for Summary Judgment 8 is GRANTED and the Petition is DISMISSED without an evidentiary hearing.Finally, IT IS ORDERED that a certificate of appealability is DENIED. Signed by Honorable R Bryan Harwell on 04/07/2015. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
George Napoleon Moses, #103370
a/k/a George N. Moses,
Petitioner,
v.
Warden Joseph McFadden,
Respondent.

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Civil Action No.: 4:14-cv-2894-RBH

ORDER

Petitioner George Napoleon Moses, #103370 a/k/a George N. Moses (“Petitioner”), a state
prisoner proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254 on July 21, 2014. See Pet., ECF No. 1. On October 17, 2014, Respondent filed a motion for
summary judgment and return and memorandum in support. See ECF Nos. 8–9. Petitioner timely
filed a response in opposition to Respondent’s motion for summary judgment. See Pet.’s Resp.,
ECF No. 12. The matter is now before the Court for review of the Report and Recommendation of
United States Magistrate Judge Thomas E. Rogers, III, made in accordance with 28 U.S.C. §
636(b)(1)(B) and Local Rule 73.02 for the District of South Carolina. See R & R, ECF No. 14. In
the Report and Recommendation, the Magistrate Judge recommends the Court grant Respondent’s
motion for summary judgment and dismiss the petition without an evidentiary hearing. See id. at
23.
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

objection is made, and the Court may accept, reject, or modify, in whole or in part, the
recommendation of the Magistrate Judge or recommit the matter with instructions. See 28 U.S.C.
§ 636(b)(1).
Neither party has filed objections to the Report and Recommendation.1 In the absence of
objections to the Report and Recommendation of the Magistrate Judge, this Court is not required to
give any explanation for adopting the recommendations. See Camby v. Davis, 718 F.2d 198, 199
(4th Cir. 1983). The Court reviews only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005) (stating that “in the
absence of a timely filed objection, a district court need not conduct 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’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Furthermore, a certificate of appealability will not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U .S.C. § 2253(c)(2). When the district court denies relief on
the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that
the court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529
U.S. 473, 484 (2000); see Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003). When the district
court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the petition states a debatable claim of the denial of a
constitutional right. Slack, 529 U.S. at 484–85. In the instant matter, the Court concludes that
Petitioner has failed to make the requisite showing of “the denial of a constitutional right.”
1

After the R & R was issued, Petitioner did file a motion to amend. In this motion, however,
Petitioner simply requests that the Respondent be changed to Warden Willie Eagleton, as Petitioner
is now incarcerated at Evans Correctional Institution. See ECF No. 24 at 1–2. Regardless of where
he is incarcerated and the name of the proper warden, the analysis remains the same and dismissal
of the claim is appropriate. However, to the extent it is necessary, the Court grants Petitioner’s
motion to amend the caption.
2

After a thorough review of the record in this case, the Court finds no clear error.
Accordingly, the Report and Recommendation of the Magistrate Judge is adopted and incorporated
by reference. Therefore, it is ORDERED that Petitioner’s motion to amend is GRANTED and the
Clerk is DIRECTED to correct the docket to reflect Warden Willie Eagleton as Respondent. IT IS
FURTHER ORDERED that Respondent’s Motion for Summary Judgment is GRANTED and the
Petition is DISMISSED without an evidentiary hearing.
Finally, IT IS ORDERED that a certificate of appealability is DENIED because the
Petitioner has failed to make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
April 7, 2015

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