Luckett v. Cartledge

Filing 37

ORDER RULING ON REPORT AND RECOMMENDATION 33 . Petitioners Petition is DISMISSED without prejudice for failure to prosecute and failure to comply with court orders. Respondents Motion for Summary Judgment, (ECF No. 17), is consequently terminated as MOOT. A certificate of appealability is denied. Signed by Honorable Mary G Lewis on 5/12/2015. (kric, ) Modified on 5/13/2015 to edit text (kric, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Nathan Luckett,

) Civil Action No. 6:14-3900-MGL
)
Petitioner, )
)
v.
)
ORDER
)
Leroy Cartledge,
)
)
Respondent. )
_______________________________________ )
Petitioner Nathan Luckett, (“Petitioner”), an inmate in the custody of the South Carolina
Department of Corrections, filed the instant petition for a 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 Civil Rule
73.02(B)(2)(c), D.S.C., this matter was referred to United States Magistrate Judge Kevin F.
McDonald for review of post-trial petitions for relief and a Report and Recommendation (“Report”).
On April 28, 2015, the Magistrate Judge issued a Report, (ECF No. 33), recommending that
the Petition be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure
to prosecute and failure to comply with court orders. Petitioner filed an Objection to the Report on
May 12, 2015. (ECF No. 35). The matter is now ripe for review by this Court.
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the Court.
See Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge 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 recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b). In 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 recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005).
In light of the standards set forth above, the Court has reviewed, de novo, the Report and the
Petitioner’s Objection. The Court has undertaken this de novo review, even though Petitioner’s two
paragraph “Objection” amounts to a simple assertion that, despite there being no record of such a
filing in the docket, Petitioner did file a response to Respondent’s long-pending Motion for Summary
Judgment on April 2, 2015. Petitioner attempts to substantiate this claim by attaching a copy of his
prison account statement, which shows that approximately ten dollars was deducted from his account
for “postage” on April 2, 2015. See ECF No. 35-1.
As the Magistrate Judge sets out in the Report, Respondent’s Motion for Summary Judgment
was filed back on February 4, 2015, (ECF Nos. 17 and 18), and Petitioner was advised by Roseboro
order, (ECF No. 19), to respond by March 12, 2015, or face potential dismissal of the Petition. (ECF
No. 19). Petitioner then sought and obtained an extension of time (until April 6, 2015) to file his
response. (ECF No. 23). When that time period elapsed and Petitioner had yet to file his response,
Petitioner was again alerted by Order dated April 7, 2015, (ECF No. 28), that if he did not respond
by April 27, his case would be subject to dismissal for failure to prosecute and failure to abide by
court orders. The record shows that Petitioner, again, did not respond as directed.
Although Petitioner now maintains that he did file a response in opposition with the Court,
prior even to the Court’s final April 7, 2015 Order warning of dismissal, there is simply no record
of any such filing in the docket. Indeed, as of the date of this Order, Petitioner has still not furnished

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to the Court a response or opposition to Respondent’s Motion for Summary Judgment, for example,
by attaching a copy of said document to his Objection.
Based on all of the foregoing, the Court must concur with the reasoning of the Magistrate
Judge and adopt the Report and incorporate it herein by reference, (ECF No. 33), overruling
Petitioner’s Objection. (ECF No. 35). It is hereby ORDERED that the Magistrate Judge’s Report
and Recommendation is ACCEPTED, (ECF No. 33), and Petitioner’s Petition is DISMISSED
without prejudice for failure to prosecute and failure to comply with court orders. Respondent’s
Motion for Summary Judgment, (ECF No. 17), is consequently terminated as MOOT.
Certificate of Appealability
The governing law provides that:
(2) A certificate of appealability may issue . . . only if the applicant
has made a substantial showing of the denial of a constitutional
right.
(3) The certificate of appealability . . . shall indicate which specific issue
or issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253© . A prisoner satisfies the standard by demonstrating that
reasonable jurists would find this court's assessment of his constitutional claims
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, 123 S.Ct.
1029, 154 L.Ed.2d 931 (2003); 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.

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IT IS SO ORDERED.
s/Mary G. Lewis
United States District Judge
May 12, 2015
Columbia, South Carolina

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