Rouse v. Sterling
Filing
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ORDER RULING ON REPORT AND RECOMMENDATION: The Court overrules Petitioner's objections and adopts the Report 18 and incorporates it herein. It is therefore ORDERED that Respondent's motion for summary judgment (ECF No. 12 ) is GRANTED and Petitioner's § 2254 petition is DISMISSED without an evidentiary hearing. Signed by Honorable Bruce Howe Hendricks on 1/11/2016. (dsto, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Devodus Rouse, #332635
Civil Action No.: 4:15-cv-130-BHH
Petitioner,
vs.
Opinion and Order
Warden, Perry Correctional Institution,
Respondent.
Petitioner, Devodus Rouse, (“Petitioner”), proceeding pro se, filed this
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1.) In
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2)(d), DSC., the action
was referred to United States Magistrate Judge Thomas E. Rogers, III, for pretrial
handling and a Report and Recommendation (“Report”). Magistrate Judge Rogers
recommends that Respondent’s Motion for Summary Judgment be granted and
Petitioner’s § 2254 petition be dismissed without an evidentiary hearing. (ECF No. 18.)
The Report and Recommendation sets forth in detail the relevant facts and standards
of law on this matter and the Court incorporates them without recitation.
BACKGROUND
Petitioner filed this action against Respondent alleging, inter alia, ineffective
assistance of counsel. On August 14, 2015, the Magistrate Judge issued a Report; and
on September 14, 2015, Petitioner filed his Objections. (ECF No. 27.) Having carefully
reviewed the record, the Court finds that the Magistrate Judge has accurately and
adequately summarized the disputed and undisputed facts relevant to this action. The
Court has reviewed the objections, but finds them to be without merit. Therefore, it will
enter judgment accordingly.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court. The
recommendation has no presumptive weight. The responsibility to make a final
determination remains with the district court. 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 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. 28 U.S.C. § 636(b)(1). The court need not conduct a de
novo review when a party makes only “general and conclusory objections that do not
direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the
absence of a timely filed, specific objection, the Magistrate Judge’s conclusions are
reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
DISCUSSION
The Magistrate Judge found that Ground Two was procedurally defaulted and
the Court agrees. Moreover, Petitioner has made no showing of cause for his failure to
raise this claim or actual prejudice, nor does he demonstrate that failure to consider
this claim would result in a miscarriage of justice. See Coleman v. Thompson, 501 U.S.
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722, 749–750 (1991). Therefore, the Court is unable to review Ground Two under §
2254.
As for the remaining claims, Petitioner’s objections fail to direct the Court to any
flaw in the Magistrate Judge’s analysis. Rather, Petitioner merely rehashes arguments
that he made in his response to the motion for summary judgment, arguments that
were properly considered and rejected by the Magistrate Judge. Because the Court
agrees with the cogent analysis by the Magistrate Judge, it need not discuss those
same issues for a second time here.
Accordingly, the objections are overruled, and the court accepts the
recommendation of the Magistrate Judge and adopts the Report in full.
CONCLUSION
After a thorough review of the Report, the record, and the applicable law, the
Court finds that Petitioner’s objections are without merit and the Magistrate Judge’s
conclusions evince no clear error. Accordingly, for the reasons stated above and by the
Magistrate Judge, the Court overrules Petitioner’s objections and adopts the Report
and incorporates it herein. It is therefore ORDERED that Respondent’s motion for
summary judgment (ECF No. 12.) is GRANTED and Petitioner’s § 2254 petition is
DISMISSED without an evidentiary hearing.
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.
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(c) (3) The certificate of appealability. . . shall indicate which specific issue or
issues satisfy the showing required in 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 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. 2011).
In this case, the legal standard for the issuance of a certificate of appealability has not
been met. Therefore, a certificate of deniability is DENIED.
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
United States District Judge
January 11, 2016
Greenville, South Carolina
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NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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