Williams v. Warden Allendale Correctional Institution

Filing 28

ORDER Adopting 26 Report and Recommendation. It is therefore ORDERED that this action be dismissed without prejudice for lack of prosecution pursuant to Fed. R. Civ. P. 41(b). Additionally, the legal standard for the issuance of a certificate of appealability has not been met. Therefore, a certificate of appealability is denied. Signed by Honorable Mary G Lewis on 1/8/14. (kmca)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Tyler Williams,

)
)
Petitioner,
)
)
vs.
)
)
Warden Allendale Correctional Institution, )
)
Respondent. )
____________________________________)

Civil Action No. 8:13-1857-MGL

OPINION AND ORDER

Petitioner, a state prisoner proceeding pro se, filed this action seeking habeas relief 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 Jacquelyn
D. Austin for review of Petitioner’s post trial petition for relief and a Report and Recommendation.
On October 4, 2013, the Respondent filed a motion for summary judgment. (ECF No. 18). 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 October 4, 2013, 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. 20).
In that order, Petitioner was advised of the possible consequence of dismissal if he failed to respond
adequately. Petitioner failed to respond to the motion.
On November 14, 2013, the court issued a second order and advised Petitioner to file a
response by December 4, 2013, otherwise the case would be recommended for dismissal. (ECF No.
23). Petitioner did not respond to this order.

Thus, Magistrate Judge Austin recommended that

this action be dismissed for lack of prosecution. (ECF No. 26).
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, 96 S.Ct. 549, 46 L.Ed.2d 483 (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
and Recommendation. (ECF 26-1.) Petitioner has filed no objections and the time for doing so
expired on January 3, 2014.
After a thorough review of the record of this matter, the applicable law, and the Report and
Recommendation of the Magistrate Judge, the court finds no clear error. Accordingly, the court
adopts and incorporates the Report and Recommendation (ECF No. 26) by reference into this order.
It is therefore ORDERED that this action be dismissed without prejudice for lack of prosecution
pursuant to Fed. R. Civ. P. 41(b).
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/Mary G. Lewis
United States District Judge
January 8, 2014
Spartanburg, South Carolina