United States District Court, D. South Carolina
Richard Mark Gergel, United States District Court Judge.
matter is before the Court on the Report and Recommendation
("R & R") of the Magistrate Judge recommending
that this Court dismiss Petitioner's Petition for Writ of
Habeas Corpus. (Dkt. No. 12). For the reasons below, the
Court adopts the R & R and dismisses the petition without
Willie James Brown, Jr. is an inmate at Allendale
Correctional Institution serving a life sentence. He was
convicted of murder on September 5, 1990, in Berkeley County,
South Carolina. (Dkt. No. 1 at 1). On August 29, 2016,
Petitioner filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, seeking to vacate
his state conviction and sentence. (Id.). Petitioner
raises four grounds for relief; (1) the state has not
responded to his "Motion to After-Newly Discovered
Evidence" for three years; (2) the solicitor unlawfully
impaneled the Grand Jury; (3) the solicitor engaged in a
conspiracy; and (4) the solicitor failed to perform her
"ministerial" duties. (Id.).
matter was referred to a Magistrate Judge in accordance with
28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC
for all pretrial proceedings. The Magistrate Judge reviewed
the petition under 28 U.S.C. § 1915 and the
Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA) and filed a Report and Recommendation (R & R) on
November 3, 2016 recommending that the petition be dismissed
without requiring Respondent to file a return. (Dkt. No. 12).
Petitioner then filed objections to the R & R. (Dkt. No.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). This Court is charged with making a de novo
determination of those portions of the R & R to which
specific objection is made. 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). Where the plaintiff
fails to file any specific objections, "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, "
see Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal
quotation omitted), and this Court is not required to give
any explanation for adopting the recommendation of the
Magistrate Judge, Camby v. Davis, 718 F.2d 198 (4th
reviewing these pleadings, 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 a 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).
Court has reviewed the petition, the R & R,
Petitioner's objections, and the relevant legal
authorities. Because Petitioner's objections simply
restate the arguments in his petition for habeas corpus
rather than responding to a specific error in the R & R,
the Court need not conduct a de novo
review. Smith v. Washington Mut, Bank FA,
308 Fed.App'x 707, 708 (4th Cir. 2009), The Magistrate
Judge liberally construed the pleadings, accurately
summarized the law, and correctly concluded that the Court
should dismiss this petition because it was filed after the
one-year limitation period had expired. (Dkt. No. 12). Under
AEDPA, a one-year period of limitation applies to
applications for a writ of habeas corpus. 28 U.S.C, §
2244(d)(1). The limitation period runs from the latest of
"the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review." Id., at § (d)(1)(A).
Therefore, the Court hereby ADOPTS the R & R as the order
of this Court and DISMISSES the petition without prejudice
and without requiring Respondent to answer.
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 ...