Bryd v. Warden Broad River Correctional Institution

Filing 28

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant and granting 17 Motion for Summary Judgment. Petitioners petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is dismissed. The court denies a certificate of appealability. Signed by Honorable Margaret B Seymour on 10/27/2011.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Leshawn Byrd,

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) C/A No. 9:10-3048-MBS
Petitioner,
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vs.
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ORDER
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Warden Broad River Correctional
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Institution,
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Respondent.
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____________________________________)
Petitioner Leshawn Byrd is an inmate in custody of the South Carolina Department of
Corrections. He currently is housed at Lieber Correctional Institution in Ridgeville, South Carolina.
On November 29, 2011, Petitioner, proceeding pro se, filed this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C.,
this matter was referred to United States Magistrate Judge Bristow Marchant for pretrial handling.
This matter is before the court on motion for summary judgment filed by Respondent on
April 29, 2011. On May 2, 2011, an order was issued pursuant to Roseboro v. Garrison, 528 F.2d
309 (4th Cir. 1975), advising Petitioner of the summary judgment procedures and the possible
consequences of failing to respond adequately. Petitioner filed a response in opposition to
Respondent’s motion on May 26, 2011. On September 29, 2011, the Magistrate Judge filed a Report
and Recommendation in which he recommended that Respondent’s motion for summary judgment
be granted. Petitioner filed no objections to the Report and Recommendation.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). The court may accept, reject, or modify, in whole or

in part, the Report and Recommendation or may recommit the matter to the Magistrate Judge with
instructions. 28 U.S.C. § 636(b)(1). 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).
The court has thoroughly reviewed the record.

The court adopts the Report and

Recommendation and incorporates it herein by reference. Respondent’s motion for summary
judgment is granted, and Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254 is dismissed.
CERTIFICATE OF APPEALABILITY
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). A prisoner satisfies this standard by demonstrating
that reasonable jurists would find that any assessment of the constitutional claims by the district
court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise
debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Rose v. Lee, 252 F.3d 676, 683-84
(4th Cir.2001).

The court concludes that Petitioner has not made the requisite showing.

Accordingly, the court denies a certificate of appealability.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
United States District Judge
Columbia, South Carolina
October 27, 2011.

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NOTICE OF RIGHT TO APPEAL
Petitioner is hereby notified of the right to appeal this order
pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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