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finding petitioner was not entitled to equitable tolling where he claimed the delay in filing his post conviction relief application was the fault of his attorney who did not timely provide him with the discovery materials he felt he needed to file the application
Summary of this case from Fallen v. ClarkeOpinion
Civil Action No. 9:13-cv-00374-JMC
08-20-2013
Xavier N. Miguel, #329103, Petitioner, v. Levern Cohen, Respondent.
ORDER
This matter is before the court for review of the Magistrate Judge's Report and Recommendation ("Report"), [Doc. 25], filed on June 12, 2013, recommending that Petitioner's Petition for Writ of Habeas Corpus [Doc. 1], be denied and that the above-captioned case be dismissed without prejudice and without issuance and service of process. Petitioner, proceeding pro se, sought habeas relief, pursuant to 28 U.S.C. § 2254. The Report sets forth the relevant facts and legal standards which this court incorporates 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 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 [Doc. 25-7]. However, Petitioner filed no objections to the Report.
In the absence of objections to the Magistrate Judge's 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). Furthermore, failure to file specific written objections to the Report 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).
After a thorough review of the Report and Recommendation and the record in this case, the court ACCEPTS the Magistrate Judge's Report and Recommendation. [Doc. 25]. It is therefore ORDERED that Petitioner's Petition for Writ of Habeas Corpus [Doc. 1], is DENIED and the above-captioned case is DISMISSED without prejudice and without issuance and service of process.
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.
(c)(3) The certificate of appealability . . . shall indicate which specific issue
or issues satisfy the showing required by paragraph (2).
IT IS SO ORDERED.
United States District Judge Greenville, South Carolina
August 20, 2013