Hubbard v. Warden ( 2022 )

IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION Deborah V. Hubbard, also known as Deborah C/A No. 8:22-cv-2200-SAL Videtto Hubbard, also known as Deborah Hubbard-Sarvis, Petitioner, v. OPINION AND ORDER Warden, Camille Griffin Graham Correctional Institution, Respondent. Pro se petitioner Deborah V. Hubbard (“Petitioner”) filed this habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is before the court for review of the August 23, 2022 Report and Recommendation of Magistrate Judge Jacquelyn D. Austin (the “Report”), ECF No. 14, recommending the court dismiss this action, without prejudice, because the petition is time-barred. Attached to the Report was a notice advising Petitioner of the procedures and requirements for filing objections to the Report and the serious consequences if he failed to do so. [ECF No. 14 at 11.] Petitioner has not filed objections, and the time for doing so has expired. The 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 this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of only those portions of the Report that have been specifically objected to, and the court may accept, reject, or modify the Report, in whole or in part. 28 U.S.C. § 636(b)(1). In the absence of objections, the court is not required to provide an explanation for adopting the Report and 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, 315 (4th Cir. 2005) (citing Fed. R. Civ. P. 72 advisory committee’s note). After a thorough review of the Report, the applicable law, and the record of this case in accordance with the above standard, the court finds no clear error, adopts the Report, ECF No. 14, and incorporates the Report by reference herein. As a result, this action is DISMISSED without prejudice and without requiring the Respondent to file an answer or return. It is further ordered that a certificate of appealability is denied because Petitioner has failed to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).1 IT IS SO ORDERED. /s/Sherri A. Lydon September 30, 2022 Sherri A. Lydon Columbia, South Carolina United States District Judge 1 A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A prisoner satisfies this standard by demonstrating that reasonable jurists would find both that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. 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 the instant matter, the court finds that Petitioner has failed to make “a substantial showing of the denial of a constitutional right.”