United States District Court, D. South Carolina, Beaufort Division
matter is before the court for review of the Magistrate
Judge's Report and Recommendation (“Report”)
filed on October 30, 2018 (ECF No. 25). The Report addresses
Plaintiff Frederick Van Anderson's
(“Plaintiff”) Petition for Writ of Habeas Corpus
(“Petition”) (ECF No. 1) and recommends that the
court dismiss the Petition and grant Defendant Warden Scott
Lewis' (“Defendant”) Motion for Summary
Judgment (ECF No. 14). (ECF No. 25 at 28.) For the reasons
stated herein, the court ACCEPTS the Report
(ECF No. 25), incorporating it herein,
DISMISSES the Petition (ECF No. 1) without
prejudice, GRANTS Defendant's Motion for
Summary Judgment (ECF No. 14), and DENIES
Plaintiff's Motion for Judicial Notice of Adjudicative
Fact (ECF No. 20).
FACTUAL AND PROCEDURAL BACKGROUND
Report sets forth the relevant facts and legal standards,
which this court incorporates herein without a full
recitation. (ECF No. 25.) As brief background, Plaintiff,
proceeding pro se, filed his Petition on March 9,
2018. (ECF No. 1.) In his Petition, Plaintiff
alleges the following: (1) the trial court that convicted him
lacked jurisdiction because of procedural defects; (2) the
violation of his Fourth, Fifth, Sixth, and Fourteenth
Amendment rights under the United States Constitution; (3)
the post-conviction relief (“PCR”) court erred by
reconstructing the record; and (4) his trial counsel was
ineffective for failing to request a competency hearing when
there was evidence raising a “substantial doubt”
regarding his competency. (Id. at 5-10; ECF No. 25
at 9-10.) Plaintiff requests the court to reverse the state
court decisions and remand his case for a new trial. (ECF No.
1 at 15.)
29, 2018, Defendant filed his Motion for Summary Judgment.
(ECF No. 14.) Defendant argues that Plaintiff's claims
are procedurally defaulted, not cognizable, and fail on the
merits. (ECF No. 13 at 8-10, 14-27.) Defendant also maintains
that many of Plaintiff's claims are belied by the record
before the court. (Id. at 14-27.) On May 30, 2018,
the Magistrate Judge issued a Roseboro
Order and advised Plaintiff of the consequences
of failing to respond to Defendant. (ECF No. 15 at 1-2.) On
that same day, the Roseboro Order was mailed to
Plaintiff. (ECF No. 16.) Approximately a month after
Defendant filed his Motion for Summary Judgment, Plaintiff
filed his Motion for Judicial Notice of Adjudicative Fact on
June 19, 2018, claiming facts exist that “can be
accurately and readily determined from sources whose accuracy
cannot reasonabl[y] be questioned.” (ECF No. 20 at
1-2.) Also occurring on June 19, 2018, Plaintiff responded in
opposition to Defendant's Motion for Summary Judgment.
(ECF No. 21.)
Magistrate Judge filed her Report on October 30, 2018. (ECF
No. 25.) In the Report, the Magistrate Judge reasoned that
Plaintiff's challenge to the trial court's
jurisdiction is not cognizable and is a question under state
law. (Id. at 21.) Additionally, the Magistrate Judge
concluded that Plaintiff's remaining claims are
procedurally defaulted without an excuse. (Id. at
23-28.) For those reasons, the Magistrate Judge ultimately
recommended that the court deny Plaintiff's Petition and
Motion for Judicial Notice of Adjudicative Fact, but grant
Defendant's Motion for Summary Judgment. (Id. at
28.) On this same day, Plaintiff was advised of his right to
file specific, written objections to the Report. (ECF No.
25-1 at 1.) At the latest, Plaintiff's objections should
have been filed by November 16, 2018. (ECF No. 25.)
STANDARD OF REVIEW
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge only makes a
recommendation to this court, and the recommendation has no
presumptive weight. See Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The responsibility to make a final
determination remains with the court. Id. at 271. As
such, the court is charged with making de novo
determinations of those portions of the Report and
Recommendation to which specific objections are made.
See 28 U.S.C. § 636(b)(1); see also
Fed. R. Civ. P. 72(b)(3). Thus, the court may accept, reject,
or modify, in whole or in part, the Magistrate Judge's
recommendation or recommit the matter with instructions. 28
U.S.C. § 636(b)(1).
to a Report must identify specific findings of the Report and
state the basis for objecting to those findings. Fed.R.Civ.P.
72(b). “[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, 316 (4th Cir. 2005)
(quoting Fed.R.Civ.P. 72 advisory committee's note).
Failure to timely file a specific, written objection to a
Report will result in a waiver of the right to appeal from an
order based upon a Report. 28 U.S.C § 636(b)(1);
Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright
v. Collins, 766 F.2d 841, 845-47 (4th Cir. 1985);
United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984). If a party fails to properly object because the
objection lacks the requisite specificity, then a de
novo review by the court is not required. See
Suttles v. Chater, No. 96-2138, 1997 WL 76900, at *1
(4th Cir. Feb. 25, 1997) (holding that “general,
non-specific objections” are not sufficient when
objecting to a magistrate judge's recommendation) (citing
Howard v. Secretary, 932 F.2d 505, 508-09 (6th Cir.
1991); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
court is required to interpret pro se documents
liberally and will hold those documents to a less stringent
standard than those drafted by attorneys. See Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see also
Hardin v. United States, C/A No. 7:12-cv-0118-GRA, 2012
WL 3945314, at *1 (D.S.C. Sept. 10, 2012). Additionally,
pro se documents must be construed in a manner,
“no matter how inartfully pleaded, to see whether they
could provide a basis for relief.” Garrett v.
Elko, No. 95-7939, 1997 WL 457667, at *1 (4th Cir. Aug.
12, 1997). However, the court must not transform itself
“into an advocate, ” and “[o]nly those
questions which are squarely presented to [the] court may be
properly addressed.” Weller v. Dep't of Soc.
Servs. for Balt., 901 F.2d 387, 391 (4th Cir. 1990).
parties were apprised of their opportunity to file objections
to the Report on October 30, 2018. (ECF No. 25-1 at 1.)
Objections to the Report were due by November 13, 2018. (ECF
No. 25.) However, objections were due by November 16, 2018,
if a party was served by mail or otherwise allowed under
Fed.R.Civ.P. 6 or Fed. R. Crim. P. 45. (Id.)
Plaintiff's Objection was filed on November 21, 2018,
which is well after November 13, 2018, and November 16, 2018.
(Compare ECF No. 30 at 1, and ECF No. 30-2
at 1, with ECF No. 25.) Given that Plaintiff's
Objection is untimely, the court need not consider it for
purposes of reviewing the Report. See Taylor v.
Gainey, 203 Fed.Appx. 426, 427 (4th Cir. 2006)
(“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.”).
absence of timely, specific objections to the
Magistrate Judge's Report, the court is not required to
give any explanation for adopting the Report. See Camby
v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Upon a
careful review, the court concludes that the Magistrate
Judge's Report is well reasoned, accurately summarizes
the law, and correctly applies the law to the instant
Petition. (ECF No. 25 at 9-29.) On the face of the Report,
there is no clear error. See Diamond, 416 F.3d at
316. Therefore, because Plaintiff's objection is
untimely, there are no other objections, and there is no
clear error, the court adopts the Report herein.
Camby, 718 F.2d at 199.
thorough review of the Report and the record in this case,
the court ACCEPTS the Magistrate Judge's
Report and Recommendation (ECF No. 25) and incorporates it
herein. The court DISMISSES Plaintiff's
Petition for Writ of Habeas Corpus (ECF No. 1) without
prejudice, GRANTS Defendant's Motion for
Summary Judgment (ECF No. ...