Bailey v. McCall

Filing 41

ORDER RULING ON REPORT AND RECOMMENDATION 26 . The Respondents motion for Summary Judgment is granted. A certificate of appealability is denied. Signed by Chief Judge Terry L Wooten on 2/28/2013. (kric, ) Modified on 3/1/2013 to edit text (kric, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Ralph Leon Bailey, Jr.,

)
)
Petitioner,
)
)
vs.
)
)
Warden McCall,
)
)
Respondent.
)
)
___________________________________ )

Civil Action No. 6:11-832-TLW-KFM

ORDER

Petitioner Ralph Leon Bailey, Jr., (“Petitioner”), brought this civil action, pro se,
pursuant to 28 U.S.C. § 2254 on April 8, 2011. (Doc. # 1).
The matter now comes before this Court for review of the Report and Recommendation
(Athe Report@) filed by United States Magistrate Judge Kevin F. McDonald, to whom this case
had previously been assigned. In the Report, the Magistrate Judge recommends that the
Respondent’s Motion for Summary Judgment be granted and that Petitioner’s § 2254 petition be
dismissed. (Doc. # 38). Objections to the Report were due by February 8, 2013. Petitioner has
filed no objections to the Report.
This Court is charged with conducting a de novo review of any portion of the Magistrate
Judge’s Report and Recommendation to which a specific objection is registered, and may accept,
reject, or modify, in whole or in part, the recommendations contained in that Report. 28 U.S.C. §
636. In the absence of objections to the Report and Recommendation of the Magistrate Judge,
this Court is not required to give any explanation for adopting the recommendation. See Camby
v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
The Court has carefully reviewed the Magistrate Judge’s Report and Recommendation.
For the reasons articulated by the Magistrate Judge, it is hereby ORDERED that the Magistrate

Judge’s Report and Recommendation is ACCEPTED. (Doc. # 38). The Court’s decision to
accept the Magistrate Judge’s time-bar analysis is based in significant part upon the holding in
the Fourth Circuit case of Crawley v. Catoe, 257 F.3d 395 (4th Cir. 2001). As indicated in the
Respondent’s brief, Crawley instructs that “[f]ollowing the denial of relief in the state courts in
state habeas proceedings, neither the time for filing a petition for certiorari in the United States
Supreme Court, nor the time a petition for certiorari is considered... is tolled under 28 U.S.C. §
2244(d)(2) from the one year statute of limitations under § 2244(d)(1).” Crawley, 257 F.3d at
399. The Respondent’s Motion for Summary Judgment is therefore GRANTED. (Doc. # 26).
The Petitioner’s application is DENIED and the action is DISMISSED.
The Court has reviewed this petition in accordance with Rule 11 of the Rules Governing
Section 2254 Proceedings. The Court concludes that it is not appropriate to issue a certificate of
appealability as to the issues raised herein. Petitioner is advised that he may seek a certificate
from the Fourth Circuit Court of Appeals under Rule 22 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.

February 28, 2013
Columbia, South Carolina

__s/Terry L. Wooten___________
Chief United States District Judge