United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge.
a state parolee proceeding pro se, commenced this action by
filing a habeas petition pursuant to 28 U.S.C. §
2254. See ECF No. 1. The matter is now
before the Court on Petitioner's untimely objections to
the Report and Recommendation (“R & R”) of
United States Magistrate Judge Thomas E. Rogers, III,
recommends summarily dismissing Petitioner's habeas
petition as untimely. See ECF Nos. 12 & 27.
Review of the R & R
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it 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. §
636(b)(1); Fed.R.Civ.P. 72(b).
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which specific written
objections have been filed. Id. However, the Court
need not conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the [C]ourt to a specific error in the [M]agistrate
[Judge]'s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
In the absence of timely filed
specific objections to the R & R, the Court reviews only
for clear error, Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate
Judge's recommendation. Camby v. Davis, 718 F.2d
198, 199-200 (4th Cir. 1983). Failure to file timely
objections constitutes a waiver of de novo review and a
party's right to appeal this Court's order. 28 U.S.C.
§ 636(b)(1); see Snyder v. Ridenour, 889 F.2d
1363, 1366 (4th Cir. 1989); Carr v. Hutto, 737 F.2d
433, 434 (4th Cir. 1984).
One-Year Statute of Limitations for Filing a § 2254
filed his habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Accordingly, the provisions of the
AEDPA apply. Lindh v. Murphy, 521 U.S. 320, 336-37
prisoner seeking federal habeas relief under 28 U.S.C. §
2254 has one year to file his petition after the latest of
four enumerated events:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1). Thus, under subsection (A),
“the one-year limitation period begins running when
direct review of the state conviction is completed or when
the time for seeking direct review has expired, unless one of
the circumstances enumerated [in subsections (B), (C), or
(D)] is present and starts the clock running ...