White v. McCall

Filing 61

ORDER RULING ON REPORT AND RECOMMENDATION: The Court overrules the petitioner's objections and adopts and incorporates the Magistrate Judge's Report 51 herein. It is therefore ORDERED that the respondents' mot ion for summary judgment (ECF No. 39 ) is GRANTED, the petitioner's petition is DENIED without an evidentiary hearing, and the petitioner's motion to stay (ECF No. 47 ) is DENIED AS MOOT. Signed by Honorable Bruce Howe Hendricks on 3/30/2015. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Jerome Carlton White, #215115,

) Civil Action No.: 5:13-745-BHH
)
Petitioner, )
)
v.
)
OPINION AND ORDER
)
Michael McCall,
)
)
Respondent. )
__________________________________ )
The petitioner, Jerome Carlton White (“the petitioner” or “White”), proceeding pro se,
filed this 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, D.S.C., the action was referred to United
States Magistrate Judge Kaymani D. West for pretrial handling and a Report and
Recommendation (“Report”). Judge West recommends that the respondent’s motion for
summary judgment be granted, that the petitioner’s petition for writ of habeas corpus be
denied, and the petitioner’s motion to stay be found moot. (ECF No. 51.) The Report sets
forth in detail the relevant facts and standards of law on this matter and the Court
incorporates them without recitation.
BACKGROUND
The petitioner filed this action against the respondent on March 18, 2013,1 alleging
inter alia prosecutorial misconduct and ineffective assistance of counsel. On November
14, 2014, the Magistrate Judge issued her Report (ECF No. 39); and on January 12, 2015,
the Clerk of Court entered the petitioner’s Objections. The Court has reviewed the
objections, but finds them to be without merit. Therefore, it will enter judgment accordingly.

1

This filing date reflects that the envelope containing the petition was stamped as having
been received on March 18, 2013, by the Lee CI (Lee Correctional Institution) mailroom. (ECF
No.1-2). Houston v. Lack, 487 U.S. 266 (1988) (holding prisoner's pleading is considered filed
when given to prison authorities for forwarding to the district court).

STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the court. The
recommendation has no presumptive weight.

The responsibility to make a final

determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270–71, 96 S. Ct.
549, 46 L.Ed.2d 483 (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). However, 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 petitioner’s objection are wholly without merit. As the Magistrate Judge found,
the petitioner’s Section 2254 petition is time barred and he is not entitled to equitable
tolling. The court, therefore, overrules the petitioner’s objections.
CONCLUSION
For the reasons stated above and by the Magistrate Judge, the Court overrules the
petitioner’s objections and adopts and incorporates the Magistrate Judge’s Report herein.
It is therefore ORDERED that the respondent’s motion for summary judgment (ECF No. 39)
is GRANTED, the petitioner’s petition is DENIED without an evidentiary hearing, and the
petitioner’s motion to stay (ECF No. 47) is DENIED AS MOOT.
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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/Bruce Howe Hendricks
United States District Judge
March 30, 2015
Greenville, South Carolina
*****
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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