Charley v. Pate

Filing 59

ORDER RULING ON REPORT AND RECOMMENDATIONS 27 and 50 . ORDERED that the respondents motion for summary judgment (ECF No. 33) is GRANTED and the petitioners first motion for default judgment, motion for summary judgment, second motion for default, motion for writ of mandamus, motion for judgmentorder of release and payment, and motion for judgment and relief (ECF Nos. 12, 18, 30, 45, 54,& 57) are DENIED. A certificate of appealability is denied. Signed by Honorable Bruce Howe Hendricks on 9/17/2015. (kric, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Civil Action No.: 6:14-3568-BHH
Timothy Charley,
Petitioner,
vs.
Opinion and Order
John Pate,
Respondent.

The petitioner Timothy Charley (“the petitioner” or “Charley”), a state prisoner
proceeding pro se, filed this writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF
No. 1.) In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the within
action was referred to United States Magistrate Judge Kevin F. McDonald for pretrial
handling and a Report and Recommendation. Magistrate Judge McDonald has issued
two Reports and Recommendations. The first one recommends denying the petitioner’s
motion for default judgment. (ECF No. 27.) The second one recommends that the
respondent’s motion for summary judgment be granted and the petitioner’s motion for
summary judgment be denied, and that the petitioner’s second motion for default
judgment and motion for writ of mandamus be denied for the reasons set forth in the
first Report and Recommendation. (ECF No. 50.) Both Report and Recommendations
set forth in detail the relevant facts and standards of law on this matter, and the Court
incorporates them without recitation.

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BACKROUND
The petitioner filed this action against the respondent alleging inter alia
ineffective assistance of post-conviction relief counsel, denial of due process and equal
protection of the laws, and plain error.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court. The
recommendation has no presumptive weight.

The responsibility to make a final

determination remains with the district 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).
The court is obligated to conduct a de novo review of every portion of the Report
to which specific objections have been filed. Id. 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) ( “[D]e novo
review [is] unnecessary in . . . situations when a party makes general and conclusory
objections that do not direct the court to a specific error in the magistrate’s proposed
findings and recommendation.”). The court reviews only for clear error in the absence
of a specific objection. Furthermore, 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). Additionally, the
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Court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). This Court
may also “receive further evidence or recommit the matter to the magistrate judge with
instructions.” Id.
First Report and Recommendation
On November 12, 2014, the Magistrate Judge issued his first Report and
Recommendation recommending that the petitioner’s motion for default judgment (ECF
No. 18) be denied. (ECF No. 27). The petitioner filed Objections on December 1, 2014.
(ECF No. 34.) The Court has carefully reviewed this document and finds the petitioner’s
arguments unpersuasive. The petitioner does not direct the Court to any error in the
Magistrate Judge’s analysis, but rather rehashes the contentions already raised in his
motion for default judgment. The Magistrate Judge more than adequately addressed
the timeliness of the respondent’s response to the petitioner’s motion for summary
judgment in his thorough and well-reasoned Report, and after de novo review of the
Report and the record, the Court fully agrees with his analysis.

The petitioner’s

objections, while verbose, provide no basis for this Court to deviate from the Magistrate
Judge’s recommended disposition and must be overruled.
Second Report and Recommendation
On March 9, 2015, the Magistrate Judge issued his second Report and
Recommendation recommending that the respondent’s motion for summary judgment
(ECF No. 33) be granted and the petitioner’s motion for summary judgment (ECF No.
12) be denied, and that the petitioner’s second motion for default judgment (ECF No.
30) and motion for writ of mandamus (ECF No. 45) be denied for the reason set forth in
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the first Report and Recommendation. (ECF No. 50.) The petitioner filed Objections on
March 19, 2015. (ECF No. 52.) Once again, the petitioner does not direct the Court to
any error in the Magistrate Judge’s analysis, but rather rehashes the same argument
that the respondent failed to timely respond to his motion for summary judgment. The
Magistrate Judge more than adequately addressed the timeliness of the respondent’s
response to the petitioner’s motion for summary judgment in his first Report and
Recommendation. The petitioner fails to address any other aspect of this Report and
Recommendation. After a de novo review of the Report and the record, the Court fully
agrees with the analysis of the magistrate judge. The petitioner’s objections still provide
no basis for this Court to deviate from the Magistrate Judge’s recommended disposition.
CONCLUSION
After a thorough review of the Reports, the record, and the applicable law, the
Court finds that the objections are without merit. Accordingly, for the reasons stated
above and by the Magistrate Judge in both Report and Recommendations, the Court
overrules the petitioner’s objections and, adopts the Magistrate Judge’s Report and
Recommendations (ECF Nos. 27 & 50.) It is therefore
ORDERED that the respondent’s motion for summary judgment (ECF No. 33) is
GRANTED and the petitioner’s first motion for default judgment, motion for summary
judgment, second motion for default, motion for writ of mandamus, motion for judgment
order of release and payment, and motion for judgment and relief (ECF Nos. 12, 18, 30,
45, 54,& 57) are DENIED.

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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).
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
September 17, 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.

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