Dockherty v. Bush

Filing 34

ORDER adopting 30 Report and Recommendation. It is ORDERED that Respondent's 21 Motion for Summary Judgment is GRANTED. Additionally, the court declines to issue a certificate of appealability. Signed by Honorable Timothy M Cain on 6/5/15. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Alton Docherty, # 314263,
Petitioner,
v.
Dennis Bush,
Respondent.

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Civil Action No. 6:14-2835-TMC

ORDER

Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule
73.02, D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before the
court is the magistrate judge’s Report and Recommendation (“Report”), recommending that
Respondent’s motion for summary judgment (ECF No. 21) be granted. (ECF No. 30). Petitioner
was advised of his right to file objections to the Report, and he filed timely objections. (ECF No.
32).
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 27071 (1976). 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 that
case, the court reviews the Report only for clear error. See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Petitioner’s objections fail to address any specific, dispositive portion of the Report. The
objections are non-specific, unrelated to the dispositive portions of the Report or merely restate
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Petitioner’s claims. The court has thoroughly reviewed the Report and Petitioner’s objections
and finds no reason to deviate from the Report’s recommended disposition.
Accordingly, the court adopts the Magistrate Judge's Report (ECF No. 30) and
incorporates it herein.

It is therefore ORDERED that Respondent’s motion for summary

judgment (ECF No. 21) is GRANTED.
Additionally, a certificate of appealability will not issue to a prisoner seeking habeas
relief absent “a substantial showing of the denial of a constitutional right.”

28 U.S.C. §

2253(c)(2). A prisoner satisfies this standard by demonstrating that reasonable jurists would find
both that his constitutional claims are debatable and that any dispositive procedural rulings by
the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336
(2003); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the court finds that the
petitioner has failed to make a substantial showing of the denial of a constitutional right.
Accordingly, the court declines to issue a certificate of appealability.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
June 5, 2015
Anderson, South Carolina

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