Johnson v. McFadden

Filing 38

ORDER RULING ON REPORT AND RECOMMENDATION: The court ADOPTS the Magistrate Judge's Report and Recommendation (ECF No. 34 ). It is therefore ORDERED that Petitioner's Petition for Writ of Habeas Corpus (ECF No. 1 ) be DISMISSED with prejudice for failure to prosecute. Signed by Honorable J Michelle Childs on 10/14/2015. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Mason Johnson,

)
)
Plaintiff,
)
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v.
)
)
Joseph McFadden,
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Respondent.
)
____________________________________)

Civil Action No. 5:14-cv-04024-JMC
ORDER

Petitioner, proceeding pro se, brought this action seeking relief pursuant to 28 U.S.C. §
2254. This matter is before the court for review of the Magistrate Judge's Report and
Recommendation (“Report”) (ECF No. 34) filed on June 8, 2015, recommending that
Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 1) be dismissed with prejudice for
failure to prosecute.
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. 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 to which specific objections are made, and the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge’s recommendation or recommit the matter with
instructions. See 28 U.S.C. § 636(b)(1).
The Magistrate Judge entered an order in this case on March 20, 2015, pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the importance of
him filing an adequate response to Respondent’s Motion for Summary Judgment, (ECF Nos. 26,
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27), and of the need for him to file an adequate response. (ECF No. 34 at 1 (noting that
“Petitioner was specifically advised that if he failed to respond adequately, Respondent’s motion
may be granted, thereby ending this case”).)
Petitioner still failed to respond to Respondent’s Motion for Summary Judgment. The
Magistrate Judge then ordered Petitioner to advise the court within approximately one month as
to his plans for continuing the case. (Id. at 1.) Again, Petitioner filed no response. (See id. (“[I]t
appears that Petitioner has abandoned his action . . . .”).)
Upon review of the Report and the record in this case, the court ADOPTS the Magistrate
Judge’s Report and Recommendation (ECF No. 34). It is therefore ORDERED that Petitioner’s
Petition for Writ of Habeas Corpus (ECF No. 1) be DISMISSED with prejudice for failure to
prosecute.
CERTIFICATE OF APPEALABILITY
The law governing certificates of appealability 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 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.
IT IS SO ORDERED.
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United States District Judge
October 14, 2015
Columbia, South Carolina

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