McElrath v. State of South Carolina

Filing 35

ORDER RULING ON REPORT AND RECOMMENDATION: The court finds the Report provides an accurate summary of the facts and law and does not contain clear error. The court ACCEPTS the Magistrate Judge's Report and Recommendati on (ECF No. 31 ). Therefore, the court DISMISSES Petitioner's Petition for Writ of Habeas Corpus (ECF No. 29 ) for lack of timeliness with no entitlement to equitable tolling of the statute of limitation and GRANTS Respondent's Motion for Summary Judgment (ECF No. 22 ). The legal standard for the issuance of a certificate of appealability has not been met. Signed by Honorable J Michelle Childs on 5/21/2018. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Steven McElrath,
Petitioner,
v.
Warden, McCormick Correctional Institution,
Respondent.

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Civil Action No.: 5:17-01569-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. 31), filed February 16, 2018. The Report recommends that
the court should dismiss Petitioner’s Writ of Habeas Corpus (ECF No. 29) for lack of timeliness
with no entitlement to equitable tolling of the statute of limitation and the court should also grant
Respondent’s Motion for Summary Judgment (ECF No. 22).
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02(B)(2)(c) for the District of South Carolina. The Magistrate Judge makes only a
recommendation to the court, which 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 reviews de novo only those portions of a Magistrate Judge’s report and recommendation to
which specific objections are filed and reviews for clear error those portions to which there are no
objections. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005);
Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
1982). The court may accept, reject, or modify, in whole or in part, the recommendation of the
magistrate judge or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).

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The parties were advised of their right to file objections to the Report (ECF No. 31-1), and
neither party has filed any objections.
In the absence of objections to the Magistrate Judge’s Report, this court is not required to
provide an explanation for adopting the recommendation. See Camby v. Davis at 199. “[I]n the
absence of a timely filed objection, a district court . . . must ‘only satisfy itself that there is no clear
error on the face of the record in order to accept the recommendation.’” Diamond v. Colonial Life
& Acc. Ins. Co. at 315 (quoting Fed. R. Civ. P. 72 advisory committee’s note). Furthermore, failure
to file specific written objections to the Report results in a party’s waiver of the right to appeal
from the judgment of the District Court based upon such recommendation. 28 U.S.C. § 636(b)(1);
Thomas v. Arn, 474 U.S. 140 (1985).
After a thorough review of the Report and the record in this case, the court finds the Report
provides an accurate summary of the facts and law and does not contain clear error. The court
ACCEPTS the Magistrate Judge’s Report and Recommendation (ECF No. 31). Therefore, the
court DISMISSES Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 29) for lack of
timeliness with no entitlement to equitable tolling of the statute of limitation and GRANTS
Respondent’s Motion for Summary Judgment (ECF No. 22).
Certificate of Appealability
The law governing certificates of appealability provides that:
(c)(2) A certificate of appealability may issue . . . only of 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 wring and that any
dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell,

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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.

United States District Judge
May 21, 2018
Columbia, South Carolina

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