United States District Court, D. South Carolina
RICHARD MARK GERGEL, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation (R & R) of the Magistrate Judge
recommending that Respondent's motion for summary
judgment be granted (Dkt. No. 39). For the reasons stated
below, the Court adopts the R & R as the order of this
Petition arises out of a September 8, 2007, conviction in
Charleston County, South Carolina for armed robbery (Dkt. No.
24-1 at 402-03), pointing and presenting a firearm (Dkt. No.
24-1 at 413-14), and the possession of a firearm during a
commission of a violent crime (Dkt. No. 24-1 at 408-09). On
August 17, 2015, Petitioner filed a pro se petition
of writ of habeas corpus. (Dkt. No. 1). Respondent filed a
motion for summary judgment on December 15, 2015 (Dkt. No.
25), and the Magistrate Judge entered a Roseboro
order directing the Petitioner to file his response within 34
days (Dkt. No. 26). Petitioner failed to respond within the
allotted time, and the Magistrate Judge issued a second order
directing Petitioner to respond by February 16, 2016, or risk
dismissal for failure to prosecute. (Dkt. No. 29). Petitioner
failed to respond by February 16, and subsequently, on
February 17, 2016, the Magistrate Judge issued an R & R
recommending that this Court dismiss the petition with
prejudice for failure to prosecute. (Dkt. No. 31).
February 17, 2016, Petitioner mailed a response to
Respondent's motion for summary judgment and the Court
received the response on February 19, 2016. (Dkt. No. 33).
Petitioner subsequently filed a response to the R & R on
March 7, 2016, in which he explained that he had been
"under institutional quarantine and understands the
possible consequences of failing to respond adequately."
(Dkt. No. 34 at 1).
March 10, 2016, this Court issued an order declining to adopt
the recommendation and referred the case back to the
Magistrate Judge for consideration of Petitioner's
response (Dkt. No. 36). After reviewing Petitioner's
response in Opposition for Summary Judgment (Dkt. No. 33),
the Magistrate Judge issued an R & R recommending summary
judgment be granted (Dkt. No. 39).
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Matthews v. Weber, 423 U.S. 261, 270-71
(1976). The Court may "agree, 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 is
charged with making a de novo determination of those portions
of the R & R or specified proposed findings or
recommendations to which objection is made. Diamond v.
Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1));
accord. Fed. R. Civ. P. 72(b).
reviewing this complaint, the Court is mindful of
Petitioner'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 apro se petitioner'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).
judgment is appropriate if a party "shows that there is
no genuine dispute as to any material fact" and that the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In other words, summary judgment should
be granted "only when it is clear that there is no
dispute concerning either the facts of the controversy or the
inferences to be drawn from those facts." Pulliam
Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987), "In determining whether a genuine issue has been
raised, the court must construe all inferences and
ambiguities in favor of the nonmoving party."
HealthSouth Rehab. Hos. v. Am. Nat'l. Red Cross,
101 F.3d 1005, 1008 (4th Cir. 1996). The party seeking
summary judgment shoulders the initial burden of
demonstrating to the court that there is no genuine issue of
material fact. Celotex Corp. v. Caltrett, 477 U.S.
317, 323 (1986).
the moving party has made this threshold demonstration, the
non-moving party, to survive the motion for summary judgment,
may not rest on the allegations averred in his pleadings.
Id. at 324. Rather, the non-moving party must
demonstrate that specific, material facts exist that give
rise to a genuine issue. Id. Under this standard,
"[c]onclusory or speculative allegations do not suffice,
nor does a 'mere scintilla of evidence'" in
support of the non-moving party's case. Thompson v.
Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (quoting Phillips v. CSX Transp. Inc., 190
F.3d 285, 287 (4th Cir. 1999).
Court has reviewed the R & R for any clear errors of law
and has found none. As explained in the Report and
Recommendation, Petitioner's application of habeas corpus
is barred by the applicable statute of limitations. Section
2244(d) provides that
(d)(1) A 1-year period of limitation shall apply to an
application of writ of habeas corpus by a person in custody
pursuant to the judgment of a State court. The ...