Upson v. Cartledge

Filing 53

OPINION AND ORDER adopting 43 Report and Recommendation of Magistrate Judge Bristow Marchant; granting 33 Motion for Summary Judgment. A certificate of appealability is denied. Signed by Honorable Mary G Lewis on 9/12/2013.(ssam, ) Modified to edit text on 9/12/2013 (ssam, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Charles Upson, #233517,

) Civil Action No.: 9:12-98-MGL
)
Petitioner, )
)
v.
)
OPINION AND ORDER
)
Warden of Ridgeland Correctional
)
Institution,
)
)
Respondent. )
______________________________ )
This matter is before the court on the Report and Recommendation of the
Magistrate Judge (ECF No. 43) recommending that the court grant Respondent’s motion
for summary judgment. (ECF No. 33). The Report sets forth in detail the relevant facts
and legal standards on this matter, which the court incorporates herein without recitation.
For the reasons set forth herein, the court agrees and adopts the Report and
Recommendation of the Magistrate Judge.
BACKGROUND
Petitioner Charles Upson, a state prisoner with the South Carolina Department of
Corrections (“SCDC”) currently housed at Perry Correctional Institution in Pelzer, South
Carolina, proceeding pro se filed this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 on January 5, 2012.1 In accordance with 28 U.S.C. § 636(b) and Local Rule

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This filing date reflects that the envelope containing the petition was stamped as having
been received on January 5, 2012, by the South Carolina Department of Corrections. (ECF
No.1-1.) Houston v. Lack, 487 U.S. 266 (1988) (holding prisoner's pleading is considered filed
when filed with prison authorities for forwarding to the district court).

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73.02, D.S.C., this matter was referred to United States Magistrate Judge Bristow
Marchant, for pretrial handling and a Report and Recommendation (“Report”). Respondent
filed a Motion for Summary Judgment on April 16, 2012 (ECF No. 14) arguing that the
Petition for Habeas Relief was subject to dismissal because Petitioner failed to file his
application for relief within one (1) year following the exhaustion of his state court
remedies. (28 U.S.C. § 2244(d)(1). As Petitioner is proceeding pro se, an Order pursuant
to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), was issued on April 23, 2012,
advising Petitioner that a Motion for Summary Judgment had been filed and the importance
for him to file an adequate response. (ECF No. 15). Petitioner filed his response on June
11, 2102. (ECF No. 20).
On July 11, 2012, the court received a document titled “Notice for Case to be
Dismissed Without Prejudice”. (ECF No. 25). The court construed this document as
Motion to Dismiss and granted the motion on July 13, 2012, the court entered an order
granting Petitioner’s Motion to Dismiss. (ECF No. 26). However, after receiving letters from
Petitioner stating he had not filed a Motion to Dismiss, the court reopened the case on
September 7, 2012. (ECF No. 31). Respondent renewed his Motion for Summary
Judgment on September 7, 2012. (ECF No. 33).

The Magistrate Judge issued a

Roseboro order on September 11, 2012, notifying Petitioner that a Motion for Summary
Judgment had filed and specifically advising him that if he failed to respond adequately,
the Motion for Summary Judgment may be granted. (ECF No. 35). Petitioner filed an
additional letter on September 28, 2012 (ECF No. 37), and a response to Respondent’s
Motion for Summary Judgment on October 16, 2012. (ECF No. 38). On April 12, 2013,
the Magistrate Judge issued a Report and Recommendation which recommends that
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Respondent's Motion for Summary Judgment be granted and that the petition be dismissed
with prejudice. (ECF No. 43). Petitioner was advised of his right to file objections to the
Report. (ECF No. 43 at 16). Petitioner filed timely objections thereto on May 6, 2013.
(ECF No. 48.) Respondent filed a Reply on May 23, 2013. (ECF No. 52.)
LEGAL STANDARD
The Report is made in accordance with 28 U.S.C § 636(b)(1) and Local Civil Rule
73.02 for the District of South Carolina. “The Court is not bound by the recommendation
of the magistrate judge but, instead, retains responsibility for the final determination.”
Wallace v. Hous. Auth., 791 F. Supp. 137, 138 (D.S.C.1992) (citing Matthews v. Weber,
423 U.S. 261, 271, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976)). The court is charged with
making a de novo determination of those portions of the Report to which specific objections
are made, and the court may accept, reject, or modify, in whole or in part, the Magistrate
Judge's recommendation or recommit the matter with instructions. See 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) (quoting Fed. R. Civ. P. 72 advisory committee's
note). Objections to the Report must be specific. In the absence of specific objections to
the Report, this court is not required to give any explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.1983). Furthermore,
failure to timely file specific written objections to the Report results in a party's waiver of his
right to appeal the judgment of the District Court based on such a recommendation. 28
U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985);
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United States v. Schronce, 727 F.2d 91 (1984). In this case, Petitioner filed an Affidavit
in Response to the Magistrate Judge’s Report and Recommendation on May 6, 2013.
(ECF No. 48) which the court construes as Plaintiff’s objections. Petitioner’s affidavit
outlines his claims for relief but, does not reference the Magistrate Judge’s Report.
DISCUSSION
Petitioner’s objections lack the requisite specificity required by Federal Rule of Civil
Procedure 72(b). Here, Petitioner merely states the reasons he believes that he is entitled
to relief. The court notes that restating claims previously presented are not considered
proper objections. Respondent filed a Reply to Petitioner’s Affidavit and argues that
Petitioner’s response improperly attempts to provide supplemental facts that were not in
the record. Upon review, the court finds that Plaintiff failed to properly object to the Report
with specificity. The court does not need to conduct a de novo review and instead must
“only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Diamond, 416 F.3d at 316. Here, the court does not find clear error
and accepts the Report by the Magistrate Judge.
CONCLUSION
Based on the aforementioned reasons and a thorough review of the Report and
Recommendation and the record in this case, the court ACCEPTS the Magistrate Judge's
Report and Recommendation.

Further, Petitioner’s objection is hereby overruled.

Accordingly, the court adopts and incorporates the Report and Recommendation . The
court GRANTS Respondent’s Motion for Summary Judgment (ECF No. 33) the petition for
habeas corpus relief is dismissed.

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CERTIFICATE OF APPEALABILITY
The law governing certificates of appealability provides that:
(c) (2) A certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.
(c) (3) The certificate of appealability . . . shall indicate which specific issue
or issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable
jurists would find this Court's assessment of his constitutional claims is debatable or wrong
and that any dispositive procedural ruling by the district court is likewise debatable. See
Miller–El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack
v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252
F.3d 676, 683 (4th Cir.2001). In this case, the legal standard for the issuance of a
certificate of appealability has not been met.
IT IS SO ORDERED.
/s/Mary G. Lewis
United States District Judge
September 12, 2013
Spartanburg, South Carolina

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