United States District Court, D. South Carolina, Beaufort Division
Darrin D. Holston, #288828, Petitioner,
Leroy Cartledge, Respondent.
OPINION & ORDER
M. HERLONG, JR. SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on Darrin D. Holston's
(“Holston”) untimely objections to the Report and
Recommendation of the magistrate judge. For the reasons set
forth below, the court adopts the Report and Recommendation.
April 26, 2018, Magistrate Judge Bristow Marchant recommended
granting Respondent's motion for summary judgment and
dismissing Holston's 28 U.S.C. § 2254 petition.
(R&R, ECF No. 44.) Objections to the Report and
Recommendation were due by May 11, 2018. Holston filed
objections to the Report and Recommendation, which he dated
May 22, 2018, and were stamped received by the prison
mailroom on May 22, 2018. (Objs. 3, Ex.1 (Env.), ECF Nos. 51
& 51-1.) Respondent filed a reply to the objections on
June 12, 2018. (Reply, ECF No. 52.) Even accepting the date
on the objections, the objections are untimely. See
Djenasevic v. U.S. Dep't of Justice, No. 15-6076,
604 Fed. App'x 328, 328 (Mem.) (4th Cir. Jun. 16, 2015)
(unpublished) (holding that, under the prison mailbox rule,
the date the inmate delivers a legal document to prison
officials for mailing, rather than the date prison officials
process the deposited mail, is the date of filing).
“[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
gives no excuse or reason for his tardiness, nor does the
court find any cause for his delay. Accordingly, Holston
waived this court's review of that order. See Ballard
v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989) (“Pro
se litigants . . . are subject to the time requirements and
respect for court orders without which effective judicial
administration would be impossible.”); see
also, Taylor v. Gainey, No. 06-6940, 2006 WL
2871206, at *1 (4th Cir. Oct. 10, 2006) (unpublished)
(“The timely filing of specific objections to a
magistrate judge's recommendation is necessary to
preserve appellate review of the substance of that
recommendation when the parties have been warned of the
consequences of noncompliance.”). After a thorough
review of the Report and Recommendation and the record in
this case, the court finds no clear error. Therefore, the
court adopts Magistrate Judge Marchant's Report and
Recommendation and incorporates it herein.
on July 6, 2018, more than one month after the deadline for
objections to the Report and Recommendation, Holston again
moves to amend his petition “pursuant to Martinez
v. Ryan.” (Sec. Mot. Amend, ECF No. 53.)
Respondent filed a response in opposition to Holston's
motion to amend on July 17, 2018. (Resp. Opp'n Sec. Mot.
Amend, ECF No. 57.) Holston provides no factual basis to
support his proposed amendment and having adopted the
magistrate judge's Report and Recommendation to grant
summary judgment, the motion to amend is futile. See
Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th
Cir. 1986) (“leave to amend a pleading should be denied
only when the amendment would be prejudicial to the opposing
party, there has been bad faith on the part of the moving
party, or the amendment would be futile.”). Therefore,
Holston's motion is denied.
addition, Holston moves to “renew his previous Motion
to Stay.” (Sec. Mot. Stay, ECF No. 54.) Respondent
filed a response in opposition to Holston's motion to
stay on July 17, 2018. (Resp. Opp'n Mot. Stay, ECF No.
56.) The court previously denied Holston's first motion
to stay and adopted the magistrate judge's Report and
Recommendation because Holston failed to set forth specific
facts and circumstances to show good cause to stay the case
in accordance with Rhines v. Weber, 544 U.S. 269
(2005). (Dec. 20, 2017 Order, ECF No. 31 & R&R 3-4,
ECF No. 27.) There is no basis for the court to grant a stay
in this case. Based on the foregoing, Holston's motion to
stay is denied.
that Respondent's motion for summary judgment, docket
number 17, is granted. It is further
that Holston's motion to stay, docket number 54, is
denied. It is further
that Holson's motion to amend, docket number 53, is
IS SO ORDERED.
OF RIGHT TO APPEAL
Movant is hereby notified that he has the right to appeal
this order within thirty (30) days from the date hereof,
pursuant to Rules 3 and 4 ...