United States District Court, D. South Carolina, Anderson/Greenwood Division
RUFUS JULIUS CORNELIUS ANDERSON, a/k/a Rufus Julius C. Anderson, Petitioner,
DIRECTOR OF GREENVILLE COUNTY DETENTION CENTER and STATE OF SOUTH CAROLINA, Respondents.
ADOPTING THE REPORT AND RECOMMENDATION, GRANTING
RESPONDENT'S MOTION FOR SUMMARY JUDGMENT, HOLDING
PETITIONER'S MOTION FOR ISSUANCE OF A SUBPOENA MOOT,
DENYING PETITIONER'S HABEAS PETITION, DENYING
PETITIONER'S MOTION TO AMEND, AND DENYING ANY REQUEST FOR
A CERTIFICATE OF APPEALABILITY
GEIGER LEWIS, UNITED STATES DISTRICT JUDGE
case was filed as a 28 U.S.C. § 2254 petition.
Petitioner is proceeding pro se. The matter is before the
Court for review of the Report and Recommendation (Report) of
the United States Magistrate Judge suggesting the Court grant
Respondent's motion for summary judgment, hold his motion
for a subpoena to be moot, and deny his habeas petition.
After the Magistrate Judge filed the Report, Petitioner filed
a motion to amend, which is also pending before this Court.
The Report was made in accordance with 28 U.S.C. § 636
and Local Civil Rule 73.02 for the District of South
Magistrate Judge makes only a recommendation to this 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 (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. §
Magistrate Judge filed the Report on September 21, 2016, but
Petitioner failed to file any objections. “[I]n 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.'”
Diamond v. Colonial Life & Acc. Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72
advisory committee's note). Moreover, a failure to object
waives appellate review. Wright v. Collins, 766 F.2d
841, 845-46 (4th Cir. 1985).
of submitting objections to the Report, on October 12, 2016,
the Clerk of Court entered Petitioner's motion to amend.
In that motion, Petitioner contends he submitted
“[a]mendments . . . to the court . . . which [were] not
discussed by the Magistrate Judge.” ECF No. 57-2.
Because the Magistrate Judge allegedly “omitted”
any discussion of those amendments in the Report, Petitioner
argues he “can not object.” Id.
to Petitioner, in his sur-reply to Respondents' reply to
his response to their motion for summary judgment, he
“submitted facts that support a Tile VI complaint, in
which [Petitioner] was protected exclusively against
government action.” Id. Petitioner now refers
to his sur-reply as his “amended complaint.”
Id. “Further[, ]” Petitioner contends,
he “submitted facts within [the] amendment supporting .
. . [P]etitioner's actual innocence by way of
Respondents['] entrapment.” Id.
Petitioner's arguments are meritless.
to Petitioner's assertion, the Court's careful review
of the Report reveals the Magistrate Judge did in fact
consider his sur-reply, even referring to it by name. See
id. at 2, 4, and 15. Nevertheless, in an abundance of
caution, the Court made a de novo review of Petitioner's
sur-reply and holds the arguments to be unpersuasive. Simply
put, Petitioner's § 2254 petition is time-barred and
he has failed to convince the Court he is entitled to
equitable tolling. Although many attempt to clear the high
hurdle one is faced to be entitled to equitable tolling, most
are found wanting. Petitioner falls into that latter
category. Consequently, the Court will deny Petitioner's
motion to amend.
thorough review of the Report and the record in this case
pursuant to the standard set forth above, the Court adopts
the Report and incorporates it herein. Therefore, it is the
judgment of the Court Respondent's motion for summary
judgment is GRANTED, Petitioner's motion for a subpoena
is held as MOOT, and both Petitioner's habeas petition
and his motion to amend are DENIED.
order denying relief in a § 2254 proceeding such as this
is not appealable unless a circuit or district judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1). A
certificate of appealability will issue only upon “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that any assessment of the constitutional
claims by the district court is debatable or wrong and that
any dispositive procedural ruling by the district court is
likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473,
484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th
Court has reviewed the petition, the record and the
applicable case law and concludes that Petitioner has failed
to make the requisite showing. Therefore, to the extent
Petitioner moves for a certificate of appealability, the
motion is DENIED.
OF RIGHT TO APPEAL
is hereby notified of the right to appeal this Order within
thirty days from the date hereof, pursuant to Rules 3 and 4