Edison v. Bragg

Filing 34

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. Respondents Motion to Dismiss or, in the alternative, for Summary Judgment is GRANTED and the Petition is dismissed. Certificate of appealability is denied. Signed by Honorable Donald C Coggins, Jr on 2/12/2018.(cwhi, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
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Petitioner,
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vs.
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M. Travis Bragg,
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Respondent. )
__________________________________________)
Jermaine Aquarius Edison,

C/A No. 9:17-cv-01754-DCC

ORDER

Petitioner, proceeding pro se, is seeking habeas corpus relief pursuant to 28 U.S.C. § 2241.
Respondent filed a Motion to Dismiss or, in the alternative, for Summary Judgment on September
29, 2017. ECF No. 19. On October 3, 2017, a Roseboro order was entered by the Court and mailed
to Petitioner, advising Petitioner of the importance of a dispositive motion and the need for
Petitioner to file an adequate response. ECF No. 20. Petitioner did not respond to the Motion to
Dismiss or, in the alternative, for Summary Judgment.1
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), (D.S.C.), this
matter was referred to United States Magistrate Judge Bristow Marchant for pre-trial proceedings
and a Report and Recommendation (“Report”). On January 17, 2018, the Magistrate Judge issued
a Report recommending that Respondent’s Motion to Dismiss or, in the alternative, for Summary
Judgment should be granted and the Petition be dismissed. ECF No. 31. The Magistrate Judge

1

On October 16, 2017, Petitioner filed a Motion to Compel stating that he had not received
Respondent’s Motion. ECF No. 22. The Magistrate Judge granted Petitioner’s Motion and directed
Respondent to file a certificate of service showing service of its Motion on Petitioner. ECF No. 24.
The Magistrate Judge further ordered Petitioner to file his response to the Motion to Dismiss or, in
the alternative, for Summary Judgment within 30 days from the date shown on the certificate of
service. Respondent complied with the order; however, Petitioner still failed to respond to the
Motion to Dismiss or, in the alternative, for Summary Judgment.

advised Petitioner of the procedures and requirements for filing objections to the Report and the
serious consequences if he failed to do so. Petitioner has filed no objections, and the time to do so
has passed.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has
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 U.S.C.
§ 636(b). The Court will review the Report only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in
the absence of 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.” (citation omitted)).
After considering the record in this case, the applicable law, and the Report of the Magistrate
Judge, the Court finds no clear error and agrees with the Report’s recommendation that
Respondent’s Motion should be granted and the Petition should be dismissed. Accordingly, the
Court adopts the Report by reference in this Order. Respondent’s Motion to Dismiss or, in the
alternative, for Summary Judgment is GRANTED and the Petition is dismissed.
In addition, 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/ Donald C. Coggins, Jr.
United States District Judge
February 12, 2018
Spartanburg, South Carolina