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Burns v. Bush

United States District Court, District of South Carolina

March 23, 2015

Artie Burns, Petitioner,
v.
D. Bush, Respondent.

OPINION AND ORDER

Bruce Howe Hendricks United States District Judge

The petitioner Artie Burns (“the petitioner” or “Burns”), proceeding pro se, filed this writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the within action was referred to United States Magistrate Judge Jacquelyn D. Austin for pretrial handling and a Report and Recommendation. Magistrate Judge Austin recommends that the respondent’s motion for summary judgment be granted. (ECF No. 30.) The Report and Recommendation sets forth in detail the relevant facts and standards of law on this matter and the Court incorporates them without recitation.

BACKGROUND

The petitioner filed this action against the respondent alleging inter alia ineffective assistance of counsel. On December 22, 2014, the Magistrate Judge issued a Report and Recommendation (Report) recommending that the respondent’s motion for summary judgment be granted. (ECF No. 30 at 47.) On January 6, 2015 the respondent filed an objection to the Report (ECF No. 36) challenging the Magistrate Judge’s consideration of the merits of some of the petitioner’s claims. On January 15, 2015, the plaintiff filed objections (ECF No. 40), and on February 9, 2015, the plaintiff filed an amendment to his objections (ECF No. 43).

STANDARD OF REVIEW

The Magistrate Judge makes only a recommendation to the district court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 270–71, 96 S.Ct. 549, 46 L.Ed.2d 483 (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 Report to which specific 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) (“[D]e novo review [is] unnecessary in . . . situations when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate’s proposed findings and recommendation.”). The court reviews only for clear error in the absence of a specific objection. Furthermore, 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). Additionally, the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). This Court may also “receive further evidence or recommit the matter to the magistrate judge with instructions.” Id.

Under 28 U.S.C. § 1915(e)(2)(B), the Court shall dismiss a prisoner’s action if it determines that the action: “(I) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” In reviewing these pleadings, the Court is mindful of Plaintiff’s pro se status. This Court is charged with liberally construing the pleadings of a pro se litigant. See, e.g., De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The requirement of a liberal construction does not mean, however, that the Court can ignore a plaintiff’s clear failure to allege facts that set forth a cognizable claim, or that a court must assume the existence of a genuine issue of material fact where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).

DISCUSSION

The Respondent’s Objections

The respondent’s objection alleges that the Magistrate Judge erred in three ways:

1. by construing the pro se document filed July 16, 2010 with the Dillon County Clerk of Court in the 2009 post-conviction relief action titled “Amended Post Conviction Application, ” as an actual amendment sufficient to present claims in the PCR action” (ECF No. 30 at 38-39);
2. by reporting that the respondent argued Ground Five was defaulted, (ECF No. 30 at 38); and
3. by reporting that the respondent argued Ground Eight was defaulted as the pro se filing was an ineffective ...

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