United States District Court, D. South Carolina, Greenville Division
OPINION AND ORDER
Howe Hendricks ,United States District Judge
Andrew Brent Scott (“Petitioner”), proceeding
pro se, filed this habeas relief action pursuant to
28 U.S.C. § 2254. (ECF No. 1.) In accordance with 28
U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(c), D.S.C., this matter was referred to United
States Magistrate Judge Kevin F. McDonald, for pre-trial
proceedings and a Report and Recommendation
February 22, 2019, Warden Broad River Correctional
Institution (“Respondent”), filed a motion for
summary judgment, along with a return and memorandum. (ECF
Nos. 14 & 15.) Since Petitioner is pro se in
this matter, the Court entered an order pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975)
on February 25, 2019, advising Petitioner of the importance
of a dispositive motion and of the need for him to file an
adequate response to Respondent's motion. (ECF No. 16.)
In that order, Petitioner was advised of the possible
consequence of dismissal if he failed to respond adequately.
Petitioner filed a response in opposition to the motion for
summary judgment, and an additional attachment (ECF Nos. 19
& 26.) Magistrate Judge McDonald considered the
parties' submissions and the record in this case, and
recommended that Respondent's motion for summary judgment
(ECF No. 15) be granted, and the petition be dismissed.
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). The Court
reviews the Report and Recommendation only for clear error in
the absence of an objection. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (stating that “in 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”) (citation omitted). The
Magistrate Judge advised Petitioner of his right to file
specific objections to the Report. (ECF No. 30 at 29.)
Petitioner filed no objections and the time for doing so
expired on August 15, 2019.
thorough review of the record of this matter, the applicable
law, and the Report of the Magistrate Judge, the Court finds
no clear error. Accordingly, the Court adopts and
incorporates the Report and Recommendation (ECF No. 30) by
reference into this order. It is therefore ORDERED that
Respondent's motion for summary judgment (ECF No. 15) is
GRANTED, the habeas petition is DISMISSED.
governing law provides that:
A certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a
The certificate of appealability . . . shall indicate which
specific issue or issues satisfy the showing required by
28 U.S.C. § 2253(c). A prisoner satisfies this standard
by demonstrating that reasonable jurists would find this
Court's assessment of his constitutional claims to be
debatable or wrong and that any dispositive procedural ruling
by this Court is likewise debatable. See Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case,
the legal standard for the issuance of a certificate of
appealability has not been met. Therefore, a certificate of
appealability is denied.
OF RIGHT TO APPEAL
parties are hereby notified that any right to appeal this
Order is governed by Rules 3 and 4 of the ...