Jones v. Warden of Evans Correctional Institution

Filing 36

ORDER ADOPTING 30 REPORT AND RECOMMENDATIONS, granting 14 Motion for Summary Judgment, and dismissing this case with prejudice. The court has reviewed its order and pursuant to Rule 11(a) of the Rules Governing Section 2254 and Section 2255 cases, declines to issue a certificate of appealability. Signed by Honorable Joseph F Anderson, Jr on 8/10/10. (rpol, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA

F ra n k Damas Jones, Petitioner, vs. Warden, Evans Correctional Institution, R e sp o n d e n t. _____________________________________

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C/A No.: 9:09-1978-JFA-BM

ORDER

T h e pro se petitioner, Frank Damas Jones, initiated this action pursuant to 28 U.S.C. § 2254 alleging challenging his state court conviction for distribution of crack cocaine. S p e c if ica lly, petitioner contends that he was given too much time for the crime; that he did n o t sell crack; and that mental illness played a role in his crime. T h e Magistrate Judge assigned to this action 1 has prepared a Report and R e c o m m e n d a tio n wherein he suggests that the respondent's motion for summary judgment2 s h o u ld be granted. The Report sets forth in detail the relevant facts and standards of law on th is matter, and the court incorporates such without a recitation. T h e petitioner was advised of his right to file objections to the Report and

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 7 3 .0 2 . The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive w e i g h t , and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 ( 1 9 7 6 ) . The court is charged with making a de novo determination of those portions of the Report to which specific o b j e c t i o n is made and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate J u d g e , or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). An order was issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying petitioner of th e summary dismissal procedure and possible consequences if he failed to adequately respond to the motions for s u m m a r y judgment. The petitioner did not respond to the motion despite receiving multiple extensions of time and w a r n in g s about the consequences of not responding.
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R e c o m m e n d a tio n , which was entered on the docket on June 4, 2010, and he has done so w ith in the time limits prescribed. However, the petitioner's objections fail to specifically a d d re ss any of the issues raised in the Report. In fact, the petitioner merely mentions that he lo st one of his eyes while in prison and he asks the court "what's up with my law suits p e rta in in g to my eye?" Specifically, the Magistrate Judge finds that the petition was not timely filed under S e c tio n 2244(d)(1)(A) and should be dismissed. The Magistrate Judge also finds that n o tw ith s ta n d in g the untimeliness and failure to show that he is entitled to equitable tolling, th e petitioner's claims are either procedurally barred or without merit. This court agrees with th e Magistrate Judge's reasoning which is set forth in the Report. After a careful review of the record, the applicable law, and the Report and R e c o m m e n d a tio n , the court finds the Magistrate Judge's recommendation to be proper and th e Report is incorporated herein by reference. A c c o rd in g ly, the respondent's motion for summary judgment is granted and this a c tio n is dismissed with prejudice. On December 1, 2009, the Rules governing Section 2254 and 2255 cases in the U n ite d States District Courts were amended to require that the district court issue or deny a c e rtif ic a te of appealability when a final ruling on a habeas petition is issued. See Rule 11(a) o f the Rules governing 28 U.S.C. § 2254 and 2255. The court has reviewed its order and p u rs u a n t to Rule 11(a) of the Rules Governing Section 2254 and Section 2255 cases, declines to issue a certificate of appealability as petitioner has not made a substantial showing of a

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d e n ial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 3 3 6 ­ 3 8 (2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable ju ris ts would find the district court's assessment of the constitutional claims debatable or w ro n g )(c itin g Slack v. McDaniel, 529 U.S. 473, 484 (2000)). IT IS SO ORDERED.

A u g u st 10, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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