Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Knox v. Bragg

United States District Court, D. South Carolina, Charleston Division

November 20, 2018

Cederick E. Knox, Petitioner,
v.
Travis Bragg, Respondent.

          ORDER AND OPINION

          Richard Mark Gergel United States District Court Judge.

         Before the court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 26) recommending the Court dismiss Petitioner's Petition for a Writ of Habeas Corpus ("Petition"). For the reasons set forth below, the Court adopts the R & R as the order of the Court and the Petition is dismissed.

         I. Background

         Petitioner Cederick E. Knox pleaded guilty on February 6, 2007. In a plea colloquy, Petitioner acknowledged that he was agreeing to an appeal waiver in exchange for the government withdrawing an information regarding a prior conviction, thereby reducing his mandatory sentence from life imprisonment to twenty years. In relevant part, the appeal waiver waived his right to contest his conviction or sentence in "any post-conviction proceeding," including "any proceeding under [28 U.S.C. §] 2255." The waiver, however, allowed him to challenge in conviction based on four grounds including, in relevant part, "ineffective assistance of counsel."[1]

         On April 10, 2018, Petitioner filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Dkt. No. 1.) In the Petition, Petitioner argues that pursuant to the Fourth Circuit's decision in United States v. Simmons, 649 F.3d 237, 239 (4th Cir. 2011), his sentence was unlawfully enhanced. (Dkt. No. 1 at 5 - 7.)

         On August 28, 2018, Respondent Travis Bragg, the warden at FCI-Bennettsville, filed a motion to dismiss. (Dkt. No. 21). On the same day, the Magistrate Judge issued a Roseboro order and advised Petitioner of Respondent's motion and that the Court may grant Respondent's motion if Petitioner's failed to respond within 31 days. (Dkt. No. 22). Petitioner did not respond to the order. On October 11, 2018, The Magistrate Judge recommended dismissing the Petition based on his failure to respond to Plaintiffs motion or, in the alternative, granting Respondent's motion to dismiss. (Dkt. No. 26). On October 29, 2018, Petitioner filed a motion for an extension of time to file objections with this Court, and included a copy of a late-filed response to Respondent's motion to dismiss. (Dkt. No. 28.) The Court granted the motion, and directed Petitioner to respond by November 12, 2018. (Dkt. No. 29.) The time period for Petitioner to file objections, including the three additional days for service by mail, has now passed.

         II. Legal Standard

         A. Motion to Dismiss

         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits of the claim, or the applicability of defenses.... Our inquiry then is limited to whether the allegations constitute 'a short and plain statement of the claim showing that the pleader is entitled to relief" Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (quotation marks and citation omitted). In a Rule 12(b)(6) motion, the Court is obligated to "assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). However, while the Court must accept the facts in a light most favorable to the non-moving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id.

         To survive a motion to dismiss, the complaint must state "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007). Although the requirement of plausibility does not impose a probability requirement at this stage, the complaint must show more than a "sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the pleading "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

         B. Report and Recommendation

         The Magistrate Judge makes only a recommendation to this Court that has no presumptive weight. The responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). 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). This Court must make a de novo determination of those portions of the R & R Petitioner specifically object. Fed.R.Civ.P. 72(b)(2). Where Petitioner 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." Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). "Moreover, in the absence of specific objections to the R & R, the Court need not give any explanation for adopting the recommendation." Wilsonv. S.C. Dept of Corr., No. 9:14-CV-4365-RMG, 2015 WL 1124701, at *1 (D.S.C. Mar. 12, 2015). See also Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983)). Petitioner did not file objections in this case, and the R & R is reviewed for clear error.

         III. Discussion

         The Magistrate Judge issued a Roseboro Order, providing Petitioner with thirty-one (31) days to respond to the motion to dismiss. Under Fed.R.Civ.P. 41 (b) a district courts may dismiss an action if a plaintiff fails to comply with an order of the court. In determining whether to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.