Opinion
CIVIL ACTION NO. 2:13-2253-MGL-WWD
08-14-2014
KENDALL GREEN, Petitioner, v. WARDEN ROBERT STEVENSON, Broad River Correctional Institution, Respondent.
ORDER ADOPTING THE REPORT AND RECOMMENDATION, DENYING PETITIONER'S MOTION TO AMEND, GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT, AND DISMISSING PETITIONER'S HABEAS PETITION WITH PREJUDICE
This case was filed as a 28 U.S.C. § 2254 action. Petitioner is proceeding pro se. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that the Court deny Petitioner's motion to amend, grant Respondent's motion for summary judgment, and dismiss Petitioner's habeas petition with prejudice. The Report was made in accordance with 28 U.S.C. § 636 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 the Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Magistrate Judge filed the Report on July 25, 2014, and the Clerk of Court entered Petitioner's objections on August 14, 2014. The Court has carefully considered the objections and finds them to be without merit. Therefore, it will enter judgment accordingly.
In his objections, Petitioner generally makes the same arguments that the Magistrate Judge considered and rejected in the Report. In fact, he repeatedly cites to his response to Respondent's motion for summary judgment while making his objections. Because the Magistrate Judge has already considered and rightly rejected each of these claims, there is no need for the Court to discuss them again here.
After a thorough review of the Report and the record in this case pursuant to the standard set forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment of the Court that Petitioner's motion to amend is DENIED, Respondent's motion for summary judgment is GRANTED, and Petitioner's habeas petition is DISMISSED WITH PREJUDICE.
An order denying relief in a § 2254 proceeding such as this is not appealable unless a circuit or district judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability will issue only upon "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The Court has reviewed the petition, the record and the applicable case law and concludes that Petitioner has failed to make the requisite showing. Therefore, to the extent that Petitioner requests a certificate of appealability from this Court, that request is DENIED.
IT IS SO ORDERED.
Signed this 14th day of August, 2014, in Spartanburg, South Carolina.
s/ Mary G. Lewis
MARY G. LEWIS
UNITED STATES DISTRICT JUDGE
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NOTICE OF RIGHT TO APPEAL
Petitioner is hereby notified of the right to appeal this Order within thirty days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.