Holley v. Padula et al

Filing 46

ORDER RULING ON REPORT AND RECOMMENDATION. The court adopts and incorporates the Report and Recommendation 39 in full. Accordingly, Respondent's motion for summary judgment 26 is granted and this petition is dismissed with prejudice. Signed by Honorable Cameron McGowan Currie on 8/16/2012. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Russell Holley, #286362,

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Petitioner,
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v.
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Anthony J. Padula, Warden,
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Respondent.
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___________________________________ )

C/A NO. 5:11-1814-CMC-KDW

OPINION and ORDER

This matter is before the court on Petitioner’s pro se application for writ of habeas corpus,
filed in this court pursuant to 28 U.S.C. § 2254.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(c), DSC, this
matter was referred to United States Magistrate Judge Kaymani D. West for pre-trial proceedings
and a Report and Recommendation (“Report”). On July 19, 2012, the Magistrate Judge issued a
Report recommending that Respondent’s motion for summary judgment be granted and this matter
be dismissed with prejudice. The Magistrate Judge advised the parties of the procedures and
requirements for filing objections to the Report and the serious consequences if they failed to do so.
Petitioner filed objections to the Report on August 6, 2012.
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 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).
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After conducting a de novo review of those matters as to which an objection was made, and
considering the applicable law, the Report and Recommendation of the Magistrate Judge, and
Petitioner’s objections, the court agrees with the conclusions of the Magistrate Judge. Accordingly,
the court adopts and incorporates the Report and Recommendation in full.
Petitioner’s objections consist of conclusory assertions regarding the purportedly faulty
review by the Magistrate Judge and the repeated assertion that Petitioner is entitled to relief.
However, these accusations, without more, fail to offer an escape from summary judgment.
Accordingly, Respondent’s motion for summary judgment is granted and this petition is 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 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/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE

Columbia, South Carolina
August 16, 2012
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