Simmons v. Joyner

Filing 31

ORDER RULING ON REPORT AND RECOMMENDATION: The court ACCEPTS the Magistrate Judge's Report and Recommendation (ECF No. 29 ) and incorporates it herein by reference. For the reasons set out in the Report, the court GRA NTS Respondent Hector Joyner's Motion to Dismiss (ECF No. 21 ) and DISMISSES without prejudice Petitioner's Petition for Writ of Habeas Corpus (ECF No. 1 ) for lack of jurisdiction. Signed by Honorable J Michelle Childs on 5/13/2019. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Marcus Timothy Simmons,

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Petitioner,
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v.
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Hector Joyner,
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Respondent.
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____________________________________)

Civil Action No.: 5:18-cv-01665-JMC

ORDER

Before the court for review is the Magistrate Judge’s Report and Recommendation
(“Report”) filed on April 8, 2019 (ECF No. 29). The court ACCEPTS the Magistrate Judge’s
Report and incorporates it herein by reference. For the reasons set out in the Report, the court
GRANTS Respondent Hector Joyner’s Motion to Dismiss (ECF No. 21) and DISMISSES without
prejudice Petitioner Marcus Timothy Simmons’ Petition for Writ of Habeas Corpus (ECF No. 1)
for lack of jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Report sets forth the relevant facts and legal standards, which this court incorporates
herein without a full recitation. (ECF No. 29 at 1–4.) As brief background, on June 18, 2018,
Petitioner, proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241,
arguing that his prior Tennessee state conviction no longer qualifies as a predicate offense for the
career-offender sentencing enhancement under the United States Sentencing Guidelines. (ECF
No. 1 at 8.) On September 12, 2018, Respondent filed a Motion to Dismiss for lack of jurisdiction.

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(ECF No. 21.) On September 17, 2018, the Magistrate Judge entered a Roseboro1 order, advising
Petitioner of the motion to dismiss procedures and the consequences of failing to adequately
respond. (ECF No. 22.) On September 27, 2018, Petitioner filed a Response to Respondent’s
Motion. (ECF No. 24.)
On April 8, 2019, the Magistrate Judge entered her Report. (ECF No. 29.) The Report
recommends granting Respondent’s Motion (ECF No. 21) and dismissing Petitioner’s Habeas
Petition (ECF No. 1) because
the [United States Court of Appeals for] the Sixth Circuit has found that a
conviction for aggravated reckless assault under the Tennessee statute at issue
qualifies as a crime of violence under the Federal Sentencing Guidelines[.]
[Therefore,] the undersigned finds Petitioner cannot show that his sentence presents
an error sufficiently grave to be deemed a fundamental defect. Because Petitioner
has not shown that § 2255 is inadequate or ineffective to test the legality of his
sentence, the court does not have jurisdiction to address his claims.
(Id. at 7–8.)
II. STANDARD OF REVIEW
The Magistrate Judge’s Report and Recommendation is made in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02 for the District Court of South Carolina. The Magistrate
Judge only makes a recommendation to this court; the responsibility to make a final determination
remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). This court engages
in a de novo review of those portions of the Report and Recommendation to which the parties have
made specific objections. See 28 U.S.C. § 636(b)(1). See also Fed. R. Civ. P. 72(b)(3). 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).

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In Roseboro v. Garrison, the United States Court of Appeals for the Fourth Circuit held that
district courts are required to provide pro se litigants with an explanation of summary judgment
procedures. 528 F.2d 309, 310 (4th Cir. 1975).
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III. DISCUSSION
On April 8, 2019, as part of the Report, the Magistrate Judge notified the parties of their
right to file objections by April 22, 2019. (ECF No. 29 at 9.) Neither of the parties filed any
objections to the Report by this date. In the absence of objections to the Magistrate Judge’s Report,
this court is not required to provide an explanation for adopting the recommendations without
modification. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Absent objections, the
court must only ensure that there is no clear error on the face of the record in order to accept the
recommendations. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note). If a party fails to file specific, written
objections to the Report, the party forfeits the right to appeal the court’s decision concerning the
Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce,
727 F.2d 91 (4th Cir. 1984). Accordingly, since none of the parties filed any objections to the
Report, and the court observes no clear error on the face of the record, the court accepts the
Magistrate Judge’s Report. See Diamond, 416 F.3d at 315; Camby, 718 F.2d at 199.
IV. CONCLUSION
After a thorough and careful review of the record, the court finds the Magistrate Judge’s
Report and Recommendation provides an accurate summary of the facts and law in this case.
Accordingly, the court ACCEPTS the Magistrate Judge’s Report and Recommendation (ECF No.
29) and incorporates it herein by reference. For the reasons set out in the Report, the court
GRANTS Respondent Hector Joyner’s Motion to Dismiss (ECF No. 21) and DISMISSES without
prejudice Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 1) for lack of jurisdiction.
IT IS SO ORDERED.

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United States District Judge
May 13, 2019
Columbia, South Carolina

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