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Matthews v. McFadden

United States District Court, D. South Carolina

August 15, 2016

Herbert Lee Matthews, Jr., Petitioner,
v.
Warden J. McFadden; Respondent.

          ORDER

          RICHARD MARK GERGEL, UNITED STATES DISTRICT JUDGE

         This 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 Court.

         I. Background

         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).

         On 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).

         On 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).

         II. Legal Standard

         The 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).

         In 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).

         Summary 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).

         Once 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).

         III. Discussion

         This 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 ...

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