McKenney v. Cartledge

Filing 27

ORDER Adopting 25 Report and Recommendation. It is therefore ORDERED that Petitioner's 1 Petition for Writ of Habeas Corpus is DISMISSED and the case is DISMISSED for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Additionally, the legal standard for the issuance of a certificate of appealability has not been met. Signed by Honorable J Michelle Childs on 1/7/14. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Booker T. McKenney, Jr.,

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Petitioner,
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v.
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Warden Leroy Cartledge,
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Respondent.
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____________________________________)

Civil Action No. 8:13-cv-01875-JMC

ORDER

This matter is before the court for review of the magistrate judge's Report and
Recommendation (“Report”), [ECF No. 25], filed on December 17, 2013, recommending that the
above captioned case be dismissed for failure to prosecute pursuant to Federal Rule of Civil
Procedure 41(b). Petitioner, proceeding pro se, brought this action seeking relief pursuant to 28
U.S.C. § 2254. The Report and Recommendation sets forth in detail the relevant facts and legal
standards on this matter, and the court incorporates the magistrate judge’s recommendation herein
without a recitation.
The magistrate judge’s Report and Recommendation is made in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The magistrate judge
makes only a recommendation to this court. The recommendation has no presumptive weight. The
responsibility to make a final determination remains with this court. See Mathews v. Weber, 423
U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific objections are made, and the court
may accept, reject, or modify, in whole or in part, the magistrate judge’s recommendation or

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recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
Petitioner was advised of his right to file objections to the Report and Recommendation [ECF
No. 25 at 1]. However, Petitioner filed no objections to the Report and Recommendation.
In the absence of objections to the magistrate judge’s Report and Recommendation, this court
is not required to provide an explanation for adopting the recommendation. See Camby v. Davis,
718 F.2d 198, 199 (4th Cir. 1983). Rather, “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.’” Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Furthermore, failure to file specific written objections to the Report and Recommendation results
in a party’s waiver of the right to appeal from the judgment of the District Court based upon such
recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins,
766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
Therefore, after a thorough and careful review of the Report and the record in this case, the
court finds the Report provides an accurate summary of the facts and law and the record in this case.
The court ADOPTS the magistrate judge’s Report and Recommendation [ECF No. 25]. It is
therefore ORDERED that Petitioner’s Petition for Writ of Habeas Corpus [ECF No. 1], is
DISMISSED and the above captioned case is DISMISSED for failure to prosecute pursuant to
Federal Rule of Civil Procedure 41(b).
Certificate of Appealability
The law governing certificates of appealability provides that:
(c)(2) A certificate of appealability may issue . . . only if the applicant has made a
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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.

IT IS SO ORDERED.

United States District Judge

January 7, 2014
Greenville, South Carolina

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