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Shameen Coker, # 291587 v. Warden

July 30, 2012

SHAMEEN COKER, # 291587,

The opinion of the court was delivered by: R. Bryan Harwell United States District Judge


Petitioner, a state prisoner proceeding pro se, initiated this suit by filing his [ECF No. 1] Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus (§ 2254 Petition) on July 27, 2011*fn1 .

Petitioner is currently incarcerated at Lee Correctional Institution in Bennettsville, South Carolina.

On November 18, 2011, Respondent filed his [ECF No. 19] Motion for Summary Judgment, along with a return and memorandum, [ECF No. 20]. Because Petitioner is proceeding pro se, the court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), on November 21, 2011, advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to adequately respond. On December 14, 2011, Petitioner filed his [ECF No. 23] Response in Opposition to the summary judgment motion.

This matter is now before the court with the [ECF No. 27] Report and Recommendation ("R & R") of United States Magistrate Judge Shiva V. Hodges,*fn2 filed on May 9, 2012. In her R & R, the Magistrate Judge recommended that the court should grant Respondent's Motion for Summary Judgment and dismiss Petitioner's petition with prejudice on the basis that the petition was not timely filed.

The Report and Recommendation was mailed to the petitioner on May 10, 2012. Therefore, allowing fourteen days plus three days for mailing and not including the Memorial Day holiday, objections were due by May 29, 2012. The court received Petitioner's objections on May 31, 2012; under the prison mailbox rule they were deemed filed on May 30, 2012, the date on which the envelope was stamped by the prison mailroom. Therefore, the objections were one day late.

Standard of Review of Magistrate Judge's R & R

The Magistrate Judge makes only a recommendation to the 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, 270-71 (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 court is obligated to conduct a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the court need not conduct a de novo review when a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

The petitioner did not file timely objections. Therefore, the Court must only review the Magistrate's Report for clear error. However, under either de novo or clear error review of the magistrate's R&R, the motion for summary judgment must be granted. Applicable Law

I. Habeas Corpus Standard

Petitioner brought this action pursuant to 28 U.S.C. § 2254. Section 2254 states in pertinent

part that:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2). "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Id § 2254(e)(1).

II. Statute of Limitations

The applicable time frame for filing a petition for writ of habeas corpus ...

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