Parker v. SC Attorney General
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, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Dervick L. Parker, #334246,
) Civil Action No.: 6:16-3244-BHH
OPINION AND ORDER
Warden, McCormick Correctional
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
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
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
(c)(3) The certificate of appealability . . . shall indicate which
specific issue or issues satisfy the showing required by paragraph
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.
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