Johnson v. State of South Carolina, The

Filing 39

ORDER adopting 31 Report and Recommendations granting Respondent's motion for summary judgment. To the extent that Petitioner requests a certificate of appealability from this Court, that certificate is denied. Signed by Honorable Henry F Floyd on 10/29/10.(alew, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION CHARLES JOHNSON, Petitioner, vs. WARDEN OF EVANS CORRECTIONAL INSTITUTION, Respondent. § § § § CIVIL ACTION NO. 6:10-00019-HFF-KFM § § § § ORDER This case was filed as a 28 U.S.C. § 2254 action. Petitioner is proceeding pro se. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that Respondent's motion for summary judgment be granted. The Report was made in accordance with 28 U.S.C. § 636 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 the Court. Mathews v. Weber, 423 U.S. 261, 270 (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).

The Magistrate Judge filed the Report on September 21, 2010, and the Clerk of Court entered Petitioner's objections to the Report on October 26, 2010. In Petitioner's objections, he asserts that he suffers from mental disease and diminished capacity. He also maintains that it is "not as easy to get to legal material as one would think." Liberally construed, Petitioner could be attempting to set forth facts in support of equitable tolling. The Court, however, agrees with the Magistrate Judge's recommendation that no extraordinary circumstances exist to justify equitable tolling. Thus, the Court finds Petitioner's objections to be without merit. After a thorough review of the Report and the record in this case pursuant to the standard set forth above, the Court overrules Petitioner's objections, adopts the Report, and incorporates it herein. Therefore, it is the judgment of this Court that Respondent's motion for summary judgment be GRANTED. To the extent that Petitioner requests a certificate of appealability from this Court, that certificate is DENIED. IT IS SO ORDERED. Signed this 29th day of October, 2010, in Spartanburg, South Carolina. s/ Henry F. Floyd HENRY F. FLOYD UNITED STATES DISTRICT JUDGE ***** NOTICE OF RIGHT TO APPEAL The parties are hereby notified of the right to appeal this Order within 30 days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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