Christian v. State of South Carolina

Filing 24

ORDER RULING ON REPORT AND RECOMMENDATION adopts 20 Report and Recommendation. This action is dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). The Court DENIES a certificate of appealability. Signed by Honorable R Bryan Harwell on 4/13/2017. (gpre, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Brandon Jabar Christian,

)
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Petitioner,
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v.
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Warden of Kershaw
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Correctional Institution,
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Respondent.
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______________________________)

Civil Action No.: 8:16-cv-03252-RBH

ORDER

Petitioner Brandon Jabar Christian, a state prisoner proceeding pro se, initiated this action by
filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See ECF No. 1. Respondent
answered by filing a return and a motion for summary judgment. See ECF Nos. 14 & 15. The matter
is now before the Court for review of the Report and Recommendation (R & R) of United States
Magistrate Judge Jacquelyn D. Austin, made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Rule 73.02 for the District of South Carolina. See R & R, ECF No. 20. The Magistrate Judge
recommends that the Court dismiss this case pursuant to Federal Rule of Civil Procedure 41(b).1 R &
R at 3.
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 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 R & R 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

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The R & R indicates the dismissal should be with prejudice. See R & R at 2 (citing Davis v. Williams, 588
F.2d 69, 70 (4th Cir. 1978)).

the matter with instructions. See 28 U.S.C. § 636(b)(1).
Neither party has filed objections to the R & R, and the time for doing so has expired.2 In the
absence of objections to the R & R, the Court is not required to give any explanation for adopting the
Magistrate Judge’s recommendations. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The
Court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life & Acc.
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 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’” (quoting Fed. R. Civ. P. 72
advisory committee’s note)).
Furthermore, 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). When the district court denies relief on the
merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the
court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies
relief on procedural grounds, the prisoner must demonstrate (1) the dispositive procedural ruling is
debatable and (2) the petition states a debatable claim of the denial of a constitutional right. Slack, 529
U.S. at 484-85. In the instant case, the Court concludes that Petitioner has failed to make the requisite
showing of “the denial of a constitutional right.”
After a thorough review of the record in this case, the Court finds no clear error. Accordingly,
the Court adopts and incorporates by reference the R & R [ECF No. 20] of the Magistrate Judge. The
Court DISMISSES this action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). The
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Petitioner’s objections to the R & R were due by March 27, 2017. See ECF No. 20.

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Court DENIES a certificate of appealability because Petitioner has not made “a substantial showing
of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2). The Court DENIES Respondent’s
motion for summary judgment [ECF No. 15] as moot.
IT IS SO ORDERED.

Florence, South Carolina
April 13, 2017

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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