Rodriquez v. Johnson
ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant and granting 24 Motion to Dismiss. The petition is dismissed. Signed by Honorable Mary G Lewis on 6/3/2013.(cwhi, ) (Main Document 43 replaced on 6/3/2013) (cwhi, ). Modified on 6/3/2013 to correct document (cwhi, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
) CA No. 9:12-2154-MGL
Opinion and Order
This matter is before the Court on the Report and Recommendation of the Magistrate Judge
recommending that the Court grant Respondent’s motion to dismiss. (ECF No. 24). The Report
and Recommendation sets forth in detail the relevant facts and legal standards on this matter, which
the Court incorporates herein without recitation.
Petitioner Luis Rodriquez is an inmate in the Federal Correctional Institution (“FCI”) and
is currently housed in Fort Dix, New Jersey. On August 1, 2012, Petitioner, proceeding pro se,
filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
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. On November 15, 2012,
Respondent filed a motion to dismiss. As Petitioner is proceeding pro se, an Order pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), was issued on November 16, 2012, advising
Petitioner that a motion to dismiss had been filed and the importance for him to file an adequate
response. Petitioner was specifically advised that if he failed to respond adequately, the Court could
grant Respondent’s motion to dismiss. On November 29, 2012, Petitioner filed his response to
Respondents' motion for summary judgment. (ECF No. 27) and Respondent filed a reply on
December 10, 2012 (ECF No. 28). Thereafter, Petitioner filed a supplemental response on
December 11, 2012 (ECF No. 32) and a sur-reply on December 17, 2012. (ECF No. 34). On
February 7, 2013, the Magistrate Judge issued a Report and Recommendation which recommended
that Respondent's motion to dismiss be granted and that the petition be dismissed. (ECF No. 40).
After receiving the Magistrate Judge’s Report and Recommendation, Petitioner filed a motion for
reconsideration. (ECF No. 42).
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, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The Court is charged
with making a de novo determination of any portions of the Report and Recommendation to which
specific objection is made. The Court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge
with instructions. 28 U.S.C. § 636(b)(1). In the absence of objections to the and Recommendation,
this Court is not required to give any explanation for adopting the recommendation. Camby v. Davis,
718 F.2d 198, 199 (4th Cir.1983).
PETITIONER’S MOTION FOR RECONSIDERATION
On February 19, 2013, Petitioner filed a motion for reconsideration of the Magistrate Judge’s
Report and Recommendation pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. The
Court construes Petitioner’s motion for reconsideration as objections to the Report and
Recommendation. After conducting a de novo review of those matters as to which an objection was
made, and considering the applicable law, the Report and Recommendation of the Magistrate Judge,
and Petitioner's objections, the Court agrees with the conclusions of the Magistrate Judge.
Accordingly, the Court adopts and incorporates the Report and Recommendation by reference in this
Petitioner's objections fail to establish that the Report and Recommendation errs in any
respect. The objections state general disagreement with the Report and Recommendation's
conclusions, or include argument which was considered and rejected by the Magistrate Judge.
Accordingly, Respondent’s motion to dismiss is GRANTED, and this petition is dismissed
CERTIFICATE OF APPEALABILITY
The governing law 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. Therefore,
a certificate of appealability is denied.
IT IS SO ORDERED.
/s/Mary G. Lewis
United States District Judge
June 3, 2013
Spartanburg, South Carolina
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