United States District Court, D. South Carolina, Aiken Division
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Petitioner's pro
se petition for writ of habeas corpus, filed in this
court pursuant to 28 U.S.C. § 2254.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2)(c), DSC, this matter was referred to United
States Magistrate Judge Shiva V. Hodges for pre-trial
proceedings and a Report and Recommendation. On September 24,
2018, Respondent filed a motion for summary judgment. Because
Petitioner is proceeding pro se, a Roseboro
Order was mailed to him on September 25, 2018, advising him
of the importance of a dispositive motion and the need to
file an adequate response. ECF No. 21. Petitioner did not
file a response to the motion for summary judgment. On
October 30, 2018, the Magistrate Judge entered an order
directing Petitioner to advise the court whether he wished to
continue with the case and to file a response to
Respondent's motion for summary judgment. ECF No. 23.
Plaintiff failed to do so within the time allotted. The
Magistrate Judge then issued a Report recommending the action
be dismissed with prejudice for failure to prosecute. ECF No.
25. The Magistrate Judge advised the parties of the
procedures and requirements for filing objections to the
Report and Recommendation and the serious consequences if
they failed to do so. Petitioner filed objections to the
Report on December 3, 2018. ECF No. 27.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. See Mathews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo
determination of any portion of the Report and Recommendation
of the Magistrate Judge to which a specific objection is
made. The court may accept, reject, or modify, in whole or in
part, the recommendation made by the Magistrate Judge or
recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b).
objections, Petitioner indicates he has been in lock down and
confined to his cell “24-7” and needs more time
“to put in paperwork to the court.” ECF No. 27.
He requests an attorney “to help with investigations
and because I can't do anything locked in my cell.”
Id. He also notes he “wants both trial
transcripts entered into evidence because the states
witnesses changed their statements from one trial to the next
and there eyewitness was unreliable.” Id.
has now indicated a desire to continue with his case;
however, he has been on lock down in his institution and thus
unable to respond in a timely manner. Although he requests
appointment of an attorney, counsel are not generally
appointed absent a showing that the interests of justice so
require, such as when there is a need for an evidentiary
hearing. 18 U.S.C. § 3006A(a)(2)(B); 28 U.S.C. §
2254(h); see also Pennsylvania v. Finley, 481 U.S.
551, 555 (1987) (“We have never held that prisoners
have a constitutional right to counsel when mounting
collateral attacks upon their convictions, and we decline to
so hold today.”) (internal citation omitted); Wise
v. Williams, 982 F.2d 142, 144 (4th Cir. 1992)
(“There is no constitutional right to an attorney in
state post-conviction proceedings.”) (citing
Coleman v. Thompson, 501 U.S. 772, 752 (1991)). As
to Petitioner's request for both trial transcripts,
Respondent has filed a return and memorandum and attached an
appendix with the state court documents regarding
Petitioner's criminal case, along with a certificate of
service stating they were mailed to Petitioner. See
ECF No. 19. If Petitioner believes additional documents are
required for his response, he shall identify them with more
was served with Respondent's motion in late September
2018, and has essentially already been granted one extension
of time to file his response to Respondent's summary
judgment motion when the Magistrate Judge gave him an
opportunity to advise whether he wished to continue with the
case. However, based on Petitioner's current lock down
status, Petitioner shall be granted an extension to file his
response to Respondent's motion for summary judgment
until January 31, 2019.
court declines to dismiss for failure to prosecute.
Petitioner shall have until January 31, 2019 to respond to
Respondent's summary judgment motion. ...