Brown v. Pate et al

Filing 16

ORDER RULING ON REPORT AND RECOMMENDATION 12 . The Court hereby ADOPTS the R & R as the order of this Court and DISMISSES the petition without prejudice and without requiring Respondent to answer. A certificate of appealability is denied. Signed by Honorable Richard M Gergel on 12/27/2016. (kric, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Willie James Brown, Jr.,
Petitioner,
v.

Warden John R. Pate,
Respondent.

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Civil Action No.6: 16-3028-RMG

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This matter is before the Court on the Report and Recommendation ("R & R") of the
Magistrate Judge recommending that this Court dismiss Petitioner's Petition for Writ of Habeas
Corpus. (Dkt. No. 12). For the reasons below, the Court adopts the R & R and dismisses the
petition without prejudice.
Background

Petitioner Willie James Brown, Jr. is an inmate at Allendale Correctional Institution
serving a life sentence. He was convicted of murder on September 5, 1990, in Berkeley County,
South Carolina. (Dkt. No.1 at 1). On August 29,2016, Petitioner filed a pro se petition for a writ
ofhabeas corpus pursuant to 28 U.S.C. § 2254, seeking to vacate his state conviction and sentence.
(ld.). Petitioner raises four grounds for relief: (1) the state has not responded to his "Motion to
After-Newly Discovered Evidence" for three years; (2) the solicitor unlawfully impaneled the
Grand Jury; (3) the solicitor engaged in a conspiracy; and (4) the solicitor failed to perform her
"ministerial" duties. (ld.).
This matter was referred to a Magistrate Judge in accordance with 28 U.S.c. § 636(b) and
Local Civil Rule 73.02(B)(2) DSC for all pretrial proceedings. The Magistrate Judge reviewed the
petition under 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996

(AEDPA) and filed a Report and Recommendation (R & R) on November 3, 2016 recommending
that the petition be dismissed without requiring Respondent to file a return. (Dkt. No. 12).
Petitioner then filed objections to the R & R. (Dkt. No. 14).
Legal Standard

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making
a de novo determination of those portions of the R & R to which specific objection is made.
Additionally, the 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). Where the plaintiff fails
to file any specific objections, "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," see Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (internal quotation omitted), and this Court is not required to give any explanation for
adopting the recommendation of the Magistrate Judge, Camby v. Davis, 718 F.2d 198 (4th Cir.
1983).
In reviewing these pleadings, the Court is mindful of Petitioner's pro se status. This Court
is charged with liberally construing the pleadings of a pro se litigant. See, e.g., De 'Lonta v.
Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The requirement of a liberal construction does not

mean, however, that the Court can ignore a petitioner's clear failure to allege facts that set forth a
cognizable claim, or that a court must assume the existence of a genuine issue of material fact
where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).

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Analysis
The Court has reviewed the petition, the R & R, Petitioner's objections, and the relevant
legal authorities. Because Petitioner's objections simply restate the arguments in his petition for
habeas corpus rather than responding to a specific error in the R & R, the Court need not conduct
a de novo review. I Smith v. Washington Mut. Bank FA, 308 Fed. App'x 707, 708 (4th Cir. 2009).
The Magistrate Judge liberally construed the pleadings, accurately summarized the law,
and correctly concluded that the Court should dismiss this petition because it was filed after the
one-year limitation period had expired. (Dkt. No. 12). Under AEDPA, a one-year period of
limitation applies to applications for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The
limitation period runs from the latest of "the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review." fd at
§ (d)(1 )(A). Therefore, the Court hereby ADOPTS the R & R as the order of this Court and

DISMISSES the petition without prejudice and without requiring Respondent to answer.
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 sho\\-ing required by paragraph (2).
28 U.S.c. § 2253(c). 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,

I Petitioner also objects to the R & R as being premature because it was filed before Respondent's
January 2, 2017 Return and Memorandum due date. This objection is without merit because the
purpose of this pretrial review is to determine whether Respondent should be required to file a
return.

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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.
AND IT IS SO ORDERED.

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Richard Mark Ge 1
United States District Court Judge
December <'7, 2016
Charleston, South Carolina

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