United States District Court, D. South Carolina, Rock Hill Division
Joseph A. Dozier, Petitioner,
Warden Stevenson, Respondent.
A Dozier, Petitioner, Pro Se.
Stevenson, Respondent, represented by Melody Jane Brown, S.C.
Attorney General's Office & Donald John Zelenka, S.C.
Attorney General's Office.
RICHARD MARK GERGEL, District Judge.
matter is before the Court on the Report and Recommendation
of the Magistrate Judge, recommending the petitioner for
habeas relief pursuant to 28 U.S.C. Â§ 2254 be dismissed with
prejudice for failure to prosecute. (Dkt. No. 42.)
January 31, 2005 jury trial, a Clarendon County jury
convicted Petitioner Joseph Dozier of armed robbery and
possession of a weapon during a violent crime. After
post-conviction state court proceedings, Petitioner filed
this pro se action seeking habeas relief pursuant to
28 U.S.C. Â§ 2254 on December 2, 2015. (Dkt. No. 1.) In
accordance with 28 U.S.C. Â§ 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(c), D.S.C., this matter was referred to a
Magistrate Judge. On March 23, 2016, Respondent filed a
motion for summary judgment, along with a return and
memorandum. (Dkt. Nos. 19, 20.) Respondent argues the
petition is barred by the applicable statute of limitations.
Since Petitioner proceeds pro se in this matter, the
Court entered an order pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), advising
Petitioner of the importance of a dispositive motion and of
the need for him to file an adequate response to
Respondent's motion. (Dkt. No. 21.) In that order,
Petitioner was advised of the possible consequence of
dismissal if he failed to respond adequately. On June 2,
2016, Petitioner moved for an extension of time in which to
file a response. (Dkt. No. 23.) The Court granted that
motion. (Dkt. No. 24.) Shortly after the new deadline lapsed,
Petitioner moved to amend the petition. (Dkt. No. 30.) The
Court denied that motion without prejudice to refile if
Respondent's statute of limitations defense was
ultimately resolved in Petitioner's favor and extended
the time to respond to the motion for summary judgment to
July 18, 2016. (Dkt. No. 33.) Petitioner again filed for an
extension on July 15, 2016. (Dkt. No. 36.) The Court granted
that motion, setting a new deadline of August 22, 2016. (Dkt.
No. 38.) On August 25, 2016, having received no response from
Petitioner, the Magistrate Judge recommended that this this
action be dismissed with prejudice for failure to prosecute.
(Dkt. No. 42.) The Magistrate Judge advised Petitioner of his
right to file specific objections to the Report.
(Id.). The petitioner filed no objections and the
time for doing so has expired. Petitioner has yet to respond
to the motion for summary judgment, though it was filed
nearly nine months ago.
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. See Mathews v.
Weber, 423 U.S. 261 (1976). The Court is charged
with making a de novo determination of any portion
of the Report of the Magistrate Judge to which a specific
objection is made. The Court reviews the Report and
Recommendation only for clear error in the absence of an
objection. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (stating that "in the absence
of a timely filed objection, a district court need not
conduct a de novo review, but instead must only satisfy
itself that there is no clear error on the face of the record
in order to accept the recommendation" (citation
thorough review of the record ofthis matter, the applicable
law, and the Report, the Court finds no clear error.
Accordingly, the Court ADOPTS the Report and Recommendation
of the Magistrate Judge (Dkt. No. 42) as the Order of the
Court, and DISMISSES the petition for habeas relief (Dkt.
No.1) for failure to prosecute, pursuant to Rule 41 (b) of
the Federal Rules of Civil Procedure and Rule 12 of the Rules
Governing Â§ 2254 Cases.
governing law 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. Â§ 2253(c). A prisoner satisfies the standard by
demonstrating that reasonable jurists would find this
court's assessment of his constitutional claims debatable
or wrong and that any dispositive procedural ruling by the
district court is likewise debatable. SeeMiller-El v. Cockrell,537 U.S. 322, 336 (2003);
Slack v. McDaniel,529 U.S. 473, 484 (2000);
Rose v. Lee,252 F.3d 676, 683 (4th Cir. 2001). In
this case, the legal standard for the issuance ...