Summary
noting the filing of a second PCR, which was untimely under the state's statute of limitations, did not toll the federal statute of limitations because the state PCR action was not properly filed
Summary of this case from Hubbard v. WardenOpinion
C/A No. 8:06-2545-GRA-BHH.
May 29, 2007
ORDER
This matter is before the Court for a review of the magistrate's Report and Recommendation made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(e), D.S.C., and filed on May 2, 2007. Petitioner filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 on September 13, 2006. Respondents filed a motion for summary judgment on November 8, 2006. On November 9, 2006, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was advised of the summary judgment procedure and the possible consequences for failure to adequately respond. Petitioner filed a response in opposition to summary judgment on December 18, 2006. The magistrate now recommends granting Respondents' Motion for Summary Judgment and dismissing this petition with prejudice.
Petitioner brings this claim pro se. This Court is required to construe pro se pleadings liberally. Such pleadings are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). This Court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. Boag v. MacDougall, 454 U.S. 364, 365 (1982).
The magistrate makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and this Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court may also "receive further evidence or recommit the matter to the magistrate with instructions." Id.
In the absence of objections to the Report and Recommendation, this Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Objections to the Report and Recommendation have not been filed.
After a review of the magistrate's Report and Recommendation, this Court finds that the report is based upon the proper law. The magistrate correctly determined that Petitioner failed to file his § 2254 petition for relief within the time period required by the AEDPA. Accordingly, the Report and Recommendation is accepted and adopted in its entirety.
IT IS THEREFORE ORDERED that Respondents' Motion for Summary Judgment is hereby GRANTED and that this case be DISMISSED with prejudice.
IT IS SO ORDERED.
NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified that he has the right to appeal this Order within thirty (30) days from the date of the entry of this Order, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. Failure to meet this deadline, as modified within Rule 4, will waive the right to appeal.