Simonds v Bragg

Filing 24

ORDER granting 12 Motion for Summary Judgment and adopting 19 Report and Recommendations. Signed by Honorable Patrick Michael Duffy on 6/27/2016.(adeh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Donald Dean Simonds, Jr.,
Petitioner,
v.
M. Travis Bragg, Warden,
Respondent.
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Case No. 8:15-cv-3254-PMD-JDA

ORDER

This matter comes before the Court on Petitioner Donald Dean Simonds, Jr.’s objections
to United States Magistrate Judge Jacquelyn D. Austin’s report and recommendation (“R & R”)
(ECF Nos. 19 & 21). The Magistrate Judge recommends granting Respondent’s summary
judgment motion (ECF No. 12) and dismissing Petitioner’s petition for relief under 28 U.S.C.
§ 2241 (ECF No. 1). For the reasons stated herein, the Court overrules Petitioner’s objections
and enters relief as recommended in the R & R.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The R & R has no
presumptive weight, and the responsibility for making a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). Parties may make written objections to
the R & R within fourteen days after being served with a copy of it. 28 U.S.C. § 636(b)(1). This
Court must conduct a de novo review of any portion of the R & R to which a timely, specific
objection is made, and the Court may accept, reject, or modify the Magistrate Judge’s findings
and recommendations in whole or in part. Id. Additionally, the Court may receive more
evidence or recommit the matter to the Magistrate Judge with instructions. Id. A party’s failure
to object is taken as the party’s agreement with the Magistrate Judge’s conclusions. See Thomas
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v. Arn, 474 U.S. 140 (1985). Absent a timely, specific objection—or as to those portions of the
R & R to which no specific objection is made—this Court “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 & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72
advisory committee’s note).
DISCUSSION
Petitioner challenges the computation of his federal prison sentence, but the Magistrate
Judge has found no impropriety.

In his objections, Petitioner continues to contend the

computation is unfair. Such protests are not proper objections. See, e.g., Anderson v. Dobson,
627 F. Supp. 2d 619, 623 (W.D.N.C. 2007) (“An ‘objection’ that . . . simply summarizes what
has been presented before[] is not an ‘objection’ as that term is used in this context.” (citation
and quotation marks omitted)).

Petitioner’s sole cognizable objection is to the Magistrate

Judge’s statement that the Missouri Department of Corrections made its parole determination on
January 30, 2012. According to Petitioner, that determination was made sometime in June 2011.
The Court fails to see how this date dispute is material to the issues at hand. Accordingly, the
Court need not address it. Cf. Kendley v. Univ. of S.C., No. 3:09-cv-786-CMC-PJG, 2009 WL
5194997, at *1 (D.S.C. Dec. 22, 2009) (adopting report and recommendation without
considering objections that were not relevant to magistrate’s recommendation to dismiss for lack
of jurisdiction).
There being no other objections, the Court has reviewed the remainder of the R & R for
clear error. After review, the Court finds that the R & R accurately states the facts and the
applicable law. The Court therefore adopts the R & R and grants Respondent’s summary
judgment motion.

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Finally, Petitioner asks this Court to issue a certificate of appealability. The Court need
not do so; Petitioner does not need one to appeal. See Drax v. Reno, 338 F.3d 98, 106 n.12 (2d
Cir. 2003).
CONCLUSION
For the foregoing reasons, the Court OVERRULES Petitioner’s objections to the R & R
and ADOPTS the R & R.

It is therefore ORDERED that Respondent’s motion for summary

judgment is GRANTED and that Petitioner’s § 2241 petition is DISMISSED with prejudice.
AND IT IS SO ORDERED.

June 27, 2016
Charleston, South Carolina

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