Shepard v. Padula

Filing 44

ORDER denying 20 Motion for Entry of Default; adopting 22 Report and Recommendations. The matter is recommitted to the Magistrate Judge for additional review and a Report and Recommendation. Signed by Honorable Margaret B Seymour on 12/19/2011.(mbro, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Ray Anthony Shepard ,
Petitioner,
vs.
Anthony J. Padula,
Respondent.

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C.A. No. 6:11-cv-1457-MBS

ORDER AND OPINION

Petitioner Ray Anthony Shepard is a prisoner in custody of the South Carolina
Department of Corrections. On June 16, 2011, Petitioner, proceeding pro se, filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. In accordance with 28 U.S.C. §
636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the action was referred to United States
Magistrate Judge Paige J. Gossett for review. The Magistrate Judge ordered Respondent to file a
return by August 25, 2011. ECF No. 9. On August 25, 2011, Respondent filed a motion for an
extension of time to file return. ECF No. 15. Respondent’s motion was granted and the
Magistrate Judge ordered that Respondent file return by September 26, 2011. ECF No. 17. On
August 31, 2011, Petitioner filed a motion for entry of default. ECF No. 20.
On September 22, 2011, the Magistrate Judge issued a Report in which she addressed
Petitioner’s motion for entry of default. The Magistrate Judge found that Respondent had not
been untimely, because he had been granted an extension until September 26, 2011 to file a
return. Accordingly, the Magistrate Judge recommended that Petitioner’s motion for entry of
default be denied. Plaintiff filed objections to the Report of the Magistrate Judge on October 6,
2011. ECF No. 30.
The Magistrate Judge makes only a recommendation to this court. The recommendation

has no presumptive weight. The responsibility for making a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de
novo determination of any portions of the Magistrate Judge’s Report to which a specific
objection is made.

The court may accept, reject, or modify, in whole or in part, the

recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate
Judge with instructions. 28 U.S.C. § 636(b)(1).
Petitioner objects to the Report of the Magistrate Judge on the ground that Respondent
has failed to file a return in a timely fashion. The basis for Petitioner’s objection is that
Respondent has sought two extensions of time for filing the return, causing delay.
Pursuant to Fed. R. Civ. P. 6(b)(1), the court may, for good cause, extend the time when
an act must be done with or without motion if the court acts, or if a request is made, before the
currently controlling time limit expires. Respondent was initially required to file a return by
August 25, 2011. However, the Magistrate Judge granted him an extension until September 26,
2011. Petitioner’s objection is therefore without merit.
CONCLUSION
After a thorough review of the Report and Recommendation, Petitioner’s Objections, the
record, and the applicable law, the court adopts the Report and Recommendation of the
Magistrate Judge and incorporates it herein by reference. Petitioner’s motion for entry of default
is DENIED. The matter is recommitted to the Magistrate Judge for additional review and a
Report and Recommendation.
IT IS SO ORDERED.
s/ Margaret B. Seymour
The Honorable Margaret B. Seymour
United States District Judge
December 19, 2011
Columbia, South Carolina
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