Mary G. Lewis

Order and Opinion

This matter is before the Court on the Report and Recommendation of the Magistrate Judge recommending that the Court grant Respondent's motion to dismiss. (ECF No. 24.) The Report sets forth in detail the relevant facts and legal standards on this matter, which the court incorporates herein without recitation. For the reasons set forth herein, the Court agrees and adopts the Report and Recommendation of the Magistrate Judge.

BACKGROUND

Petitioner Luis Rodriquez an inmate in the South Carolina Department of Corrections proceeding pro se filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on August 1, 2012. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Bristow Marchant, for pretrial handling. On November 15, 2012, Respondent filed a motion to dismiss. As Petitioner is proceeding pro se, an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), was issued on November 16, 2012, advising Petitioner that a motion to dismiss had been filed and the importance for him to file an adequate response. Petitioner was specifically advised that if he failed to respond adequately, the Court could grant Respondent's motion to dismiss. On November 29, 2012, Petitioner filed his response to Respondents' motion for summary judgment. Petitioner also filed a motion for summary judgment on July 1, 2005. On February 7, 2013, the Magistrate Judge issued a Report and Recommendation which recommends that Respondent's motion to dismiss be granted and that the petition be dismissed. After receiving the Magistrate Judge's Report and Recommendation, Petitioner filed a motion for reconsideration. (ECF No. 42.)

LEGAL STANDARD

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this court. Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The Court is charged with making a de novo determination of any portions of the Report and Recommendation 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 may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). 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).

PETITIONER'S MOTION FOR RECONSIDERATION

On February 19, 2013, Petitioner filed a motion for reconsideration of the Magistrate Judge's Report and Recommendation pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. The Court construes Petitioner's motion as an objection to the Report and Recommendation. Upon review, this court finds that Petitioner's motion for reconsideration or "objections" (ECF NO. 42) does not satisfy the specificity requirement outlined in Rule 72(b) of the Federal Rules of Civil Procedure. Without specific objection to the Magistrate Judge's reasoning, this court will not discuss the conclusion reached by the Magistrate Judge any further. See 28 U.S.C. § 636(b)(1)(C) (If a party objects, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made"); see also Thomas v. Arn, 474 U.S. 140, 147-48, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (Specific objections are necessary to focus the court's attention on disputed issues); see also Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982) (failure to file specific objections to particular conclusions in Magistrate Judge's Report, after warning of consequences of failure to object, waives further review). Therefore, to the extent the Petitioner's motion for reconsideration can be construed as an objection to the Magistrate Judge's Report and Recommendation, the objection is found to be without merit.

CONCLUSION

After carefully reviewing the Report, objection, pleadings, memoranda, and applicable law, the court adopts the Magistrate Judge's Report and Recommendation and incorporates it herein. The Petitioner's "objection" to the Report is hereby overruled. Accordingly, the Respondents' motion to dismiss is GRANTED in its entirety and the petition is dismissed.

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. (c) (3) The certificate of appealability . . . shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (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.

Mary G. Lewis

United States District Judge
June 3, 2013
Spartanburg, South Carolina