RAZZAK v. HERRING et al

Filing 7

ORDER signed by JUDGE LORETTA C. BIGGS on 2/9/2017 adopting the Magistrate Judge's Recommendation 2 ; that this action is construed as a habeas petition under 28 U.S.C. § 2254 and dismissed sua sponte without prejudice to Petitioner filing a new petition which corrects the defects of the current Petition. The new petition must be accompanied by either the five dollar filing fee or a current application to proceed in forma pauperis. A Judgment dismissing this action will be entered contemporaneously with this Order. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BASIR MATEEN RAZZAK,
Petitioner,
v.
JOHN A. HERRING, et al.,
Respondent(s).

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1:16CV1391

ORDER
The Recommendation of the United States Magistrate Judge was filed with the Court
in accordance with 28 U.S.C. § 636(b) and, on December 15, 2016, was served on the parties
in this action. (ECF Nos. 2, 3.)1 Plaintiff filed several documents after entry of the
Recommendation. (See ECF No. 5.) The Court has appropriately reviewed the Magistrate
Judge’s Recommendation and, in light of Plaintiff’s post-Recommendation filing, the Court,
out of an abundance of caution, has made a de novo determination in accord with the Magistrate
Judge’s Recommendation.2

The Court therefore adopts the Magistrate Judge’s

Recommendation.
1

The Recommendation was returned to the Court with a handwritten note “Return to sender No
contract” on the outside of the envelope. (ECF No. 4-1 at 1.) As a result, the Court mailed the
Recommendation to Petitioner a second time. (ECF No. 6.)
2

Section 636(b) provides that a federal district judge “shall make a de novo determination of those
portions of the [magistrate judge’s] report or specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b). Here, Petitioner’s post-Recommendation filing does
not provide any specific objections to “findings or recommendations” in the Magistrate Judge’s
Recommendation. (See ECF No. 5.) Under these circumstances, the Court need not conduct a de
novo review of the Recommendation. Littlejohn v. Qaddifi, Civ. Action No. 7:10-1122-RBH, 2010
WL 2026673, at *1 (D.S.C. May 20, 2010) (unpublished) (concluding that “[t]he district court need

IT IS THEREFORE ORDERED that this action is construed as a habeas petition
under 28 U.S.C. § 2254 and dismissed sua sponte without prejudice to Petitioner filing a new
petition which corrects the defects of the current Petition. The new petition must be
accompanied by either the five dollar filing fee or a current application to proceed in forma
pauperis. A Judgment dismissing this action will be entered contemporaneously with this
Order.
This, the 9th day of February, 2017.

/s/ Loretta C. Biggs
United States District Judge

not conduct a de novo review when a party makes only general and conclusory objections that do not
direct the court to a specific error in the [m]agistrate [j]udge’s proposed findings and
recommendations” (citing Orpiano v. Johnson, 687 F.2d 44, 47–48 (4th Cir. 1982))). Nevertheless,
the Court has conducted such a de novo review and adopts the Magistrate Judge’s Recommendation.
The Court further notes that the post-Recommendation filing does not correct the defects identified
in the Recommendation. (See ECF 2 at 1-2.) Accordingly, the Court will dismiss this action
notwithstanding the post-Recommendation filing.

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