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rejecting the petitioner's ineffective assistance claim premised on trial counsel's failure to strike a juror as biased where juror initially responded, "I think I can" to the question, "Can you be fair to both the [s]tate and the [d]efendant?" but then unequivocally stated she could remain fair
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Civil Action No: 2:13-cv-02911-JMC
01-21-2015
Johnny Ray Gambrell, #213682, Petitioner, v. Warden of Broad River Correctional Institution, Respondent.
ORDER
Petitioner, proceeding pro se, brought this action seeking relief pursuant to 28 U.S.C. § 2254. This matter is before the court for review of the magistrate judge's Report and Recommendation ("Report"), (ECF No. 36), filed on December 9, 2014, recommending Respondent's Motion for Summary Judgment (ECF No. 26) be granted; and Petitioner's Writ of Habeas Corpus (ECF No. 1) be dismissed with prejudice. It is also recommended that a certificate of appealability be denied. The Report sets forth in detail the relevant facts and legal standards on this matter, and the court incorporates the magistrate judge's recommendation herein without a recitation.
The magistrate judge's 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 magistrate judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation 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).
Petitioner was advised of his right to file objections to the Report (ECF No. 36 at 35). However, Petitioner filed no objections to the Report and Recommendation.
In the absence of objections to the magistrate judge's Report and Recommendation, 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). Furthermore, failure to file specific written objections to the Report and Recommendation results in a party's waiver of the right to appeal from the judgment of the District Court based upon such recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
Therefore, after a thorough and careful review of the Report and the record in this case, the court finds the Report provides an accurate summary of the facts and law. The court ADOPTS the magistrate judge's Report and Recommendation (ECF No. 36). It is therefore ORDERED that Respondent's Motion for Summary Judgment (ECF No. 26) is GRANTED; and Petitioner's Writ of Habeas Corpus (ECF No. 1) is DISMISSED with prejudice. It is further ORDERED that a certificate of appealability is DENIED.
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.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 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (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.
(c)(3) The certificate of appealability . . . shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
/s/
United States District Judge
January 21, 2015
Columbia, South Carolina