Parker v. SC Attorney General

Filing 42

ORDER RULING ON REPORT AND RECOMMENDATION 40 . the Court adopts and incorporates the Report and Recommendation 40 by reference into this order. It is therefore ORDERED that Respondents motion for summary judgment 25 is GRANTED, the petition for habeas corpus relief 1 is DENIED, and Petitioners motions to stay 3 and to amend 36 are DENIED. A certificate of appealability is denied. Signed by Honorable Bruce Howe Hendricks on 5/4/2017. (kric, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA Dervick L. Parker, #334246, ) Civil Action No.: 6:16-3244-BHH ) Petitioner, ) ) v. ) OPINION AND ORDER ) Warden, McCormick Correctional ) Institution, ) ) Respondent. ) __________________________________ Petitioner Dervick L. Parker (“Petitioner”), proceeding pro se, filed this habeas relief action 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. McDoanald, for pre-trial proceedings and a Report and Recommendation (“Report”). On December 19, 2016, Respondent Warden, McCormick Correctional Institution (“Respondent”), filed a motion for summary judgment, along with a return and memorandum. (ECF Nos. 24, 25.) Since Petitioner is pro se in this matter, the Court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) on December 20, 2016, advising Petitioner of the importance of a dispositive motion and of the need for him to file an adequate response to Respondent’s motion. (ECF No. 26.) In that order, Petitioner was advised of the possible consequence of dismissal if he failed to respond adequately. Petitioner filed a response in opposition to the motion for summary judgment (ECF No. 35), and Respondent filed a Reply (ECF No. 38). Petitioner also filed a Motion to amend his petition. (ECF No. 36). Magistrate Judge McDonald considered the parties’ submissions and the record in this case, and recommended that Respondent’s motion for summary judgment (ECF No. 25) be granted, the petition for habeas corpus relief (ECF No. 1) be denied, and that Petitioner’s motions to stay (ECF No. 3) and to amend (ECF No. 36) be denied. The Magistrate Judge makes only a recommendation to this 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 and Recommendation 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). The Court reviews the Report and Recommendation only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “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”) (citation omitted). The Magistrate Judge advised Petitioner of his right to file specific objections to the Report. (ECF No. 31-1.) Petitioner filed no objections and the time for doing so expired on April 23, 2017. After a thorough review of the record of this matter, the applicable law, and the Report of the Magistrate Judge, the Court finds no clear error. Accordingly, the Court adopts and incorporates the Report and Recommendation (ECF No. 40) by reference into this order. It is therefore ORDERED that Respondent’s motion for summary judgment (ECF No. 25) is GRANTED, the petition for habeas corpus relief (ECF No. 1) is DENIED, and Petitioner’s motions to stay (ECF No. 3) and to amend (ECF No. 36) are DENIED. CERTIFICATE OF APPEALABILITY -2- 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 to be debatable or wrong and that any dispositive procedural ruling by this 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 Greenville South Carolina May 4, 2017 ***** 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. -3-

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