Lopez v. McFadden

Filing 57

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; finding as moot 54 Motion for Extension of Time to File Response/Reply ; finding as moot 56 Motion for Evidentiary Hearing; granting 35 Motion for Summary Judgment. The Petition is DISMISSED with prejudice. A certificate of appealability is DENIED. Signed by Honorable Mary G Lewis on 4/29/2015.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Alberto R. Lopez,

) Civil Action No. 9:14-484-MGL
)
Petitioner, )
)
v.
)
ORDER
)
Warden Joseph McFadden,
)
)
Respondent. )
_______________________________________ )
Petitioner Alberto R. Lopez, (“Petitioner”), an inmate in the custody of the South Carolina
Department of Corrections, filed the instant petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. (ECF No. 1). In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(c), D.S.C., this matter was referred to United States Magistrate Judge Bristow Marchant
for review of post-trial petitions for relief and a Report and Recommendation (“Report”).
On March 19, 2015, the Magistrate Judge issued a Report, (ECF No. 49), recommending that
Respondent’s Motion for Summary Judgment, (ECF No. 35), be granted and that the Petition be
dismissed. Objections to the Report were originally due by April 6, 2015. Petitioner sought and
obtained an extension to file Objections, see ECF Nos. 51 and 52, resulting in a final submission
deadline of April 21, 2015. Petitioner did not file an Objection to the Report until April 23, 2015.
(ECF No. 55).1 The matter is now ripe for review.
The Magistrate Judge makes only a recommendation to the Court. The recommendation has

1

By characterizing Petitioner’s Objection as submitted to the Court on April 23, 2015, the Court has
extended to Petitioner the benefit of the prison date stamp rule of Houston v. Lack, 487 U.S. 266, 270-276 (1988).
The Court did not actually receive Petitioner’s filing until April 28, 2015. In any case, under any standard,
Petitioner’s Objection was untimely filed, despite the prior 15-day extension granted by the Court.

no presumptive weight, and the responsibility to make a final determination remains with the Court.
See Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection is
made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by
the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b). 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).
In light of the standards set forth above, the Court has reviewed, de novo, the Report and the
Petitioner’s Objection. The Court has undertaken this de novo review, even though Petitioner’s
Objection was untimely. Upon review, the Court concludes that none of Petitioner’s Objections
meaningfully counter the Magistrate Judge’s core legal determination that Petitioner has failed to
establish either prong of the necessary two-prong standard for ineffective assistance of counsel
claims first announced in Strickland v. Washington, 466 U.S. 668 (1984). Nor do any of Petitioner’s
Objections call into doubt the Magistrate Judge’s separate finding that no other issue raised or
attempted to be raised by Petitioner in this application was properly preserved for federal court
review.
In view of the above, the Court concurs in full with the reasoning of the Magistrate Judge and
adopts the Report and incorporates it herein by reference, (ECF No. 49), overruling Petitioner’s
Objections. (ECF No. 55). Accordingly, Respondent’s Motion for Summary Judgment, (ECF No.
35), is GRANTED and the Petition is DISMISSED with prejudice. Petitioner’s second Motion for
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Extension of Time, (ECF No. 54), and Motion for Evidentiary Hearing, (ECF No. 56), are properly
terminated as MOOT.
Certificate of Appealability
The governing law provides that:
(2) A certificate of appealability may issue . . . only if the applicant
has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability . . . shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253© . A prisoner satisfies the standard by demonstrating that
reasonable jurists would find this court's assessment of his constitutional claims
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); 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
April 29, 2015
Columbia, South Carolina

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