Moore v. Stirling
ORDER ADOPTING 37 Report and Recommendation granting 15 Motion for Summary Judgment filed by Warden of Perry Correctional Institution. The habeas petition is dismissed because it is time barred. Signed by Honorable Richard M Gergel on 12/5/17. (jtho, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Darious Lamont Moore,
Case No .: 8: l 7-cv-850
ORDER AND OPINION
Warden of Perry Correctional Institution,
This matter is before the Court on the Report and Recommendation ("R. & R. ") of the
Magistrate Judge (Dkt. No . 37) recommending that this Court dismiss Petitioner's habeas
petition (Dkt. No . 1) as time barred. For the reasons set forth below, this Court adopts the R. &
R. as the order of the Court.
Background and Relevant Facts
Petitioner Darious Lamont Moore pied guilty to armed robbery on March 3, 2003 and
was sentenced to sixteen years imprisonment. No direct appeal was filed. Petitioner' s application
for post-conviction relief ("PCR") based on ineffective assistance of counsel was not successful.
On March 28, 2017, Mr. Moore filed the instant petition for a writ of habeas corpus under 28
U.S .C. § 2254. At the time he filed his petition, Mr. Moore was confined at Perry Correctional
Institution. Mr. Moore is proceedingpro se and informapauperis.
a. Pro Se Pleadings
This Court liberally construes complaints filed by pro se litigants to allow the
development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972) ; Haines v.
Kerner, 404 U.S. 519 (1972) . The requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege facts which set forth a viable federal
claim, nor can the Court assume the existence of a genuine issue of material fact where none
exists. See Weller v. Dep 't ofSocial Services, 901 F.2d 387 (4th Cir. 1990).
b. Magistrate's Report and Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261 , 270- 71 (1976). This Court is charged with
making a de novo determination of those portions of the Report and Recommendation to which
specific objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l).
The Magistrate Judge explained in the R. & R. that Petitioner' s habeas petition is time
barred because it was filed over nine years after the expiration of the limitations period. (Dkt.
No. 37 at 14-15) and Petitioner has not met the standard for relief by equitable tolling.
The Magistrate Judge issued a Report and Recommendation on November 1, 2017 and
mailed it to Petitioner at Perry Correctional Institution the same day. (Dkt. Nos. 37, 38.) That
mailing was returned as undeliverable because Petitioner had been released to Sumter County
(Dkt. No. 39.) The Magistrate Judge previously issued an order explaining that Petitioner was
responsible for notifying the Court of any change in address and that his case could be dismissed
for his failure to do so. (Dkt. No. 5 at 2.) Petitioner has failed to notify the Clerk' s Office of his
current address since his release.
Obj ections to the R. & R. were due by November 18, 2017. No party has filed Objections
to the R. & R. In the absence of any specific objections, "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." See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). This Court finds that the
Magistrate Judge has correctly applied the controlling law to the facts of this case.
For the reasons set forth above, this Court adopts the R. & R. (Dkt. No. 37) as the order of
the Court. The habeas petition is dismissed because it is time barred.
AND IT IS SO ORDERED.
Richard Mark Gergel
United States District Court Judge
Charleston, South Carolina
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?