United States District Court, D. South Carolina, Charleston Division
Cederick E. Knox, Petitioner,
Travis Bragg, Respondent.
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge.
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.
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."
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.)
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
Motion to Dismiss
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.
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.
Report and Recommendation
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.
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 ...