United States District Court, D. South Carolina
F. ANDERSON, JR. UNITED STATES DISTRICT JUDGE
Wells (“Petitioner”), a pro se state
prisoner, filed the instant petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). On
July 18, 2019, Warden Terrie Wallace
(“Respondent”) filed a Motion for Summary
Judgment along with a return to the petition and memorandum
of law in support. (ECF Nos. 13 & 14). The court advised
Petitioner of the summary judgment procedure and the possible
consequences if he failed to respond via an order issued
pursuant to Roseboro v. Garrison, 528 F.2d 309, 310
(4th Cir. 1975) on the following day. (ECF No. 15).
Petitioner filed a response on August 13, 2019, to which
Respondent filed a reply on August 20, 2019. (ECF Nos. 17
& 18). In accordance with 28 U.S.C. § 636(b) and
Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this matter was
referred to the Magistrate Judge.
Magistrate Judge assigned to this action prepared a
thorough Report and Recommendation (“Report”) and
opines that this court should grant Respondent's Motion
for Summary Judgment and dismiss the petition with prejudice.
(ECF No. 19). The Report sets forth, in detail, the relevant
facts and standards of law on this matter, and this court
incorporates those facts and standards without a recitation.
court is charged with making a de novo determination
of those portions of the Report to which specific objections
are made, and the court may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge,
or recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b)(1).
However, a district court is only required to conduct a
de novo review of the specific portions of the
Magistrate Judge's Report to which an objection is made.
See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b);
Carniewski v. W. Virginia Bd. of Prob. & Parole,
974 F.2d 1330 (4th Cir. 1992). In the absence of specific
objections to portions of the Report of the Magistrate Judge,
this court is not required to give an explanation for
adopting the recommendation. See Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983). Thus, the court must only
review those portions of the Report to which Petitioner has
made a specific written objection. Diamond v. Colonial
Life & Acc. Ins. Co., 416 F.3d 310, 316 (4th Cir.
objection is specific if it ‘enables the district judge
to focus attention on those issues-factual and legal-that are
at the heart of the parties' dispute.'”
Dunlap v. TM Trucking of the Carolinas, LLC, No.
0:15-cv-04009-JMC, 2017 WL 6345402, at *5 n.6 (D.S.C. Dec.
12, 2017) (citing One Parcel of Real Prop. Known as 2121
E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996)). A
specific objection to the Magistrate's Report thus
requires more than a reassertion of arguments from the
complaint or a mere citation to legal authorities. See
Workman v. Perry, No. 6:17-cv-00765-RBH, 2017 WL
4791150, at *1 (D.S.C. Oct. 23, 2017). A specific objection
must “direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982).
stated, nonspecific objections have the same effect as would
a failure to object.” Staley v. Norton, No.
9:07-0288-PMD, 2007 WL 821181, at *1 (D.S.C. Mar. 2, 2007)
(citing Howard v. Sec'y of Health and Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991)). The court
reviews portions “not objected to-including those
portions to which only ‘general and conclusory'
objections have been made-for clear error.”
Id. (emphasis added) (citing Diamond, 416
F.3d at 315; Camby, 718 F.2d at 200;
Orpiano, 687 F.2d at 47).
was advised of his right to object to the Report, which was
entered on the docket on August 29, 2019. (ECF No. 19).
Petitioner filed objections to the Report on September 16,
(“Objections”). (ECF No. 22). Respondent replied
to the Objections on October 4, 2019. (ECF No. 24).
Petitioner also submitted what appears to be a second
response or “sur-reply” to the motion for summary
judgment after the Report was issued. (ECF No. 21). As
sur-replies are not authorized by this court's Local
Rules and this submission is otherwise untimely, this
submission will not be considered. Additionally, Respondent
argues that Petitioner's Objections are untimely as they
were due by September 15, 2019. Despite this contention,
Respondent will suffer no prejudice by this court's
review of these objections as they were only submitted one
day after the deadline and they do not ultimately affect the
outcome below. Petitioner also filed a “Response to
Reply to Objections to the Report and Recommendation.”
(ECF No. 25). Because a response to replies to Reports and
Recommendations are not authorized by the Local Rules, this
document will not be considered. Thus, this matter is ripe
Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is proper when there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as
a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). A material fact is one that “might
affect the outcome of the suit under the governing
law.” Spriggs v. Diamond Auto Glass, 242 F.3d
179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute of
material fact is “genuine” if sufficient evidence
favoring the non-moving party exists for the trier of fact to
return a verdict for that party. Anderson, 477 U.S.
moving party bears the initial burden of showing the absence
of a genuine dispute of material fact. Celotex, 477
U.S. at 323. Once the moving party makes this showing,
however, the opposing party may not rest upon mere
allegations or denials, but rather must, by affidavits or
other means permitted by the Rule, set forth specific facts
showing that there is a genuine issue for trial. See
Fed. R. Civ. P. 56(e). All inferences must be viewed in a
light most favorable to the non-moving party, but he
“cannot create a genuine issue of material fact through
mere speculation or the building of one inference upon
another.” Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985).
this court incorporates the factual background discussed in
the Report, a brief recitation of the relevant facts is
necessary to properly address Petitioner's Objections.
Petitioner was indicted for second-degree criminal sexual
conduct with a minor and he went to trial in November 2010.
The victim testified that when she first met Petitioner, she
told him she was eighteen. The next time they met, however,
he asked her if she was fifteen, as one of her friends had
told him that. She admitted that was her real age; a couple
of hours later, they had sex. Over the summer, they had sex
several more times. Each time, he came over to her house
after midnight, climbing through her bedroom window.
testified in his defense. He told the jury the victim said
she was eighteen and never told him anything different. He
did not know she actually was fifteen until her stepfather
found him in the house and confronted him. Had Petitioner
known her true age, he would not have had a sexual
relationship with her. As he had done in his opening
statement, Petitioner's trial counsel argued ...