Rose v. Cartledge
ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts and incorporates the Magistrate Judge's Report (ECF No. 43 ) and dismisses this action with prejudice for failure to prosecute, in accordance with Rule 41(b) of the Federal Rules of Civil Procedure. A certificate of appealability is denied. Signed by Honorable Bruce Howe Hendricks on 10/18/2017. (prou, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Alan Duane Rose, #313915,
Warden Larry Cartledge,
Civil Action No. 5:16-cv-3394-BHH
This matter is before the Court on Petitioner Alan Duane Rose’s pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. §
636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), the matter was referred to a
United States Magistrate Judge for initial review.
On July 24, 2017, Respondent filed a motion for summary judgment. Pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Magistrate Judge advised
Petitioner of the summary judgment procedure and the need for him to file a response to
the motion. Notwithstanding the specific instructions in the Roseboro order, Petitioner
failed to respond to Respondent’s motion. Thus, on August 28, 2017, the Magistrate Judge
ordered Petitioner to advise the Court whether he wished to continue with this action and
to respond to Respondent’s motion. Petitioner did not file a response.
Accordingly, on October 3, 2017, Magistrate Judge Kaymani D. West filed a Report
and Recommendation (“Report”) outlining the issues and recommending that the Court
summarily dismiss this § 2254 petition with prejudice for failure to prosecute, in accordance
with Rule 41(b) of the Federal Rules of Civil Procedure. Attached to the Report was a
notice advising Plaintiff of his right to file written objections to the Report within fourteen
days of being served with a copy. To date, no objections have been filed.
The Magistrate Judge makes only a recommendation to the Court.
recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court
is charged with making a de novo determination only 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 recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of specific
objections, the Court reviews the matter only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a
timely filed objection, a district court need not conduct a 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).
Here, because no objections were filed, the Court has reviewed the record, the
applicable law, and the findings and recommendations of the Magistrate Judge for clear
error. After review, the Court finds no clear error and agrees with the Magistrate Judge that
this case is subject to dismissal based on Petitioner’s failure to comply with the Court’s
orders and prosecute his case.
Accordingly, the Court adopts and incorporates the Magistrate Judge’s Report (ECF
No. 43) and dismisses this action with prejudice for failure to prosecute, in accordance with
Rule 41(b) of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.
/s/Bruce H. Hendricks
Bruce Howe Hendricks
United States District Judge
October 18, 2017
Charleston, South Carolina
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 the 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). Here, the Court finds that the legal
standard for the issuance of a certificate of appealability has not been met. Therefore, a
certificate of appealability is denied.
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