Sheriff v. Lewis
ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 14 Motion for Summary Judgment; and the petition forwrit of habeas corpus is DISMISSED with prejudice. Certificate of appealability is denied. Signed by Honorable Timothy M Cain on 3/31/2017.(cwhi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
David Dale Sheriff, # 171192,
Scott Lewis, Warden,
Civil Action No. 9:16-2921-TMC
Petitioner is an inmate at the Kirkland Correctional Institution of the South Carolina
Department of Corrections and is seeking habeas corpus relief pursuant to 28 U.S.C. § 2254.1
Before the court is the magistrate judge’s Report and Recommendation (“Report”),
recommending that the court grant Respondent’s motion for summary judgment and dismiss the
petition with prejudice. (ECF No. 33.) Petitioner was advised of his right to file objections to
the Report. (ECF No. 33 at 22). However, Petitioner has not filed objections, and the time to do
so has now run.
The Report has no presumptive weight and the responsibility to make a final determination
remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). In the absence of
objections to the Report, this court is not required to provide an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “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).
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 for the District of South Carolina, this
matter was initially referred to a magistrate judge.
After a thorough review of the record in this case, the court finds no clear error and,
therefore, adopts the Report (ECF No. 33) and incorporates it herein by reference. Accordingly,
Respondent’s motion for summary judgment (ECF No. 14) is GRANTED, and the petition for
writ of habeas corpus is DISMISSED with prejudice.
Additionally, a certificate of appealability will not issue to a prisoner seeking habeas
relief 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
both that his constitutional claims are debatable and that any dispositive procedural rulings by
the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336
(2003); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the court finds that the
petitioner has failed to make a substantial showing of the denial of a constitutional right.
Accordingly, the court declines to issue a certificate of appealability.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
March 31, 2017
Anderson, South Carolina
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