Demorcy v. Warden Perry Correctional Institution

Filing 45

ORDER adopting 28 Report and Recommendation. Accordingly, the § 2254 petition is denied and the respondent's 16 Motion for summary judgment and 15 Motion to strike are granted. IT IS FURTHER ORDERED that a certificate of appealability is denied. Signed by Honorable Joseph F Anderson, Jr on 7/23/14. (kmca)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Jamel Demorcy,

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Petitioner,
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v.
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Warden, Perry Correctional Institution,
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Respondent.
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______________________________________ )

C/A No. 8:13-1867-JFA-JDA

ORDER

The pro se petitioner, Jamel Demorcy, is an inmate at the Perry Correctional
Institution. He brings this action under 28 U.S.C. § 2254 challenging his 2002 convictions
for assault and battery with intent to kill and possession of a pistol.
The Magistrate Judge assigned to this action1 has prepared a Report and
Recommendation and opines that the petition is untimely and barred by the statute of
limitations. The respondents filed a motion for summary judgment.2 The Report sets forth
in detail the relevant facts and standards of law on this matter, and the court incorporates

1

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. 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. Mathews
v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).
2

An order was issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying petitioner
of the summary dismissal procedure and possible consequences if he failed to adequately respond to the
motion for summary judgment. Petitioner responded to the motion.

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such without a recitation.
The petitioner was advised of his right to file objections to the Report and
Recommendation, which was entered on the docket on April 9, 2014. The petitioner has
filed objections (ECF 31) to the Report wherein he requests that the court get copies of his
documents and transcripts from the county courts regarding his PCR hearing. He does not
address the Magistrate Judge’s conclusion that the petition is time-barred. In the absence of
specific objections to the Report of the Magistrate Judge, this court is not required to give
any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199
(4th Cir. 1983).
The Magistrate Judge opines that this petition is time-barred under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). Additionally, the Magistrate Judge finds
that the petitioner is not entitled to equitable tolling and that much of the petitioner’s
statement regarding timeliness of the petition is nonsensical.
After carefully reviewing the applicable laws, the record in this case, and the Report
and Recommendation, this court finds the Magistrate Judge’s recommendation fairly and
accurately summarizes the facts and applies the correct principles of law. Thus, the Report
is adopted and incorporated herein by reference. Accordingly, the § 2254 petition is denied
and the respondent’s motions for summary judgment (ECF No. 16) and to strike (ECF No.
15) are granted.

2

IT IS FURTHER ORDERED that a certificate of appealability is denied because the
petitioner has failed to make “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).3
IT IS SO ORDERED.

July 23, 2014
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional
right.” 28 U .S.C. § 2253(c)(2) (West 2009). A prisoner satisfies this standard by demonstrating that
reasonable jurists would find both that his constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or wrong. 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).

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