Inyangette v. Drew

Filing 48

ORDER RULING ON REPORT AND RECOMMENDATION 41 . It is therefore ORDERED that respondents motion for summary judgment (ECF No. 26) is GRANTED, and the habeas petition is DISMISSED WITH PREJUDICE. A certificate ofappealability is DENIED. Signed by Honorable Bruce Howe Hendricks on 3/30/2015. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Ekere Iyangette, #33211-007,
f/k/a Michael Thomas,

) Civil Action No.: 6:13-1219-BHH
)
)
Petitioner, )
)
OPINION AND ORDER
v.
)
)
Travis Bragg,
)
)
Respondent. )
__________________________________ )
The petitioner, Ekere Iyangette (“the petitioner” ), a federal prisoner proceeding pro
se, filed this writ of habeas corpus pursuant to 28 U.S.C. §§ 1651 and 2241. (ECF No. 1).
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the action was
referred to United States Magistrate Judge Kevin F. McDonald for pretrial handling and a
Report and Recommendation (“Report”).

Judge McDonald recommends that the

respondent’s motion for summary judgment be granted and the habeas petition be
dismissed with prejudice. (ECF No. 41.) The Report sets forth in detail the relevant facts
and standards of law on this matter and the Court incorporates them herein without
recitation.
BACKGROUND
The petitioner filed this action against the respondent on May 2, 2013.1 On May 7,
2014, the Magistrate Judge issued a Report , (ECF No. 41), and the Clerk of Court entered
the petitioner’s objections, (ECF No. 43), on May 30, 2014. The court has reviewed the

1

This filing date reflects that the envelope containing the petition was stamped as having
been received on May 3, 2013, by the Federal Correctional Institution mailroom. (ECF No.1-1.)
Houston v. Lack, 487 U.S. 266 (1988) (holding prisoner's pleading is considered filed when
given to prison authorities for forwarding to the district court).

objections, but finds them to be without merit. Therefore, it will enter judgment accordingly.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the 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, 270–71, 96 S.Ct.
549, 46 L.Ed.2d 483 (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). However, the court need not
conduct a de novo review when a party makes only “general and conclusory objections that
do not direct the court to a specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). In the absence
of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only
for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir.2005).
DISCUSSION
In regards to the filing of objections, the Magistrate Judge instructed the petitioner
as follows:
The parties are advised that they may file specific written
objections to this Report and Recommendation with the District
Judge. Objections must specifically identify the portions of the
Report and Recommendation to which objections are made
and the basis for such objections. “[I]n the absence of a timely
filed objection, a district court need not conduct a de novo
review, but instead must ‘only satisfy itself that there is no clear
error on the face of the record in order to accept the
-2-

recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co.,
416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72
advisory committee’s note).
*****
Failure to timely file specific written objections to this
Report and Recommendation will result in waiver of the
right to appeal from a judgment of the District Court based
upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas
v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841
(4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th
Cir. 1984).
(ECF 41 at 8). But, the petitioner failed to make any specific objections to the Report.
Instead, he generally made arguments that the Magistrate Judge has already considered
and rejected. Because the court agrees with the Magistrate Judge’s treatment of these
issues, it need not discuss them again here. As such, the petitioner’s objections are
overruled.
CONCLUSION
For the reasons stated above and by the Magistrate Judge, the Court overrules the
petitioner’s objections and adopts and incorporates by reference the Magistrate Judge’s
Report and Recommendation.
It is therefore ORDERED that respondent’s motion for summary judgment (ECF No.
26) is GRANTED, and the habeas petition is DISMISSED WITH PREJUDICE.
CERTIFICATE OF APPEALABILITY
The governing law provides that:
(c) (2) A certificate of appealability may issue . . . only if 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).
-3-

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 wrong
and that any dispositive procedural ruling by the district court is likewise debatable. See
Miller–El v. Cockrell, 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. Therefore, a certificate of
appealability is DENIED.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
March 30, 2015
Greenville, South Carolina
*****
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.

-4-