Sams v. Mosely

Filing 19

ORDER adopting and incorporating the 15 Report and Recommendation and dismissing the 1 Petition with prejudice for lack of prosecution. Signed by Honorable J. Michelle Childs on 7/17/2017. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCKHILL DIVISION

Kevin Sams,

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Petitioner,
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v.
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Bonita Mosely, Warden,
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Respondent.
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____________________________________)

Civil Case No.: 0:17-cv-00497-JMC

ORDER

Pro se Kevin Sams (“Petitioner”), a federal prisoner incarcerated at Edgefield Federal
Correctional Institution in South Carolina (“Edgefield FCI”), filed a Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2241 (“Petition”)1 on February 21, 2017. (ECF No. 1.) Petitioner alleges
that Respondent failed to comply with the “Mandate of the Second Chance Act.” Specifically,
Petitioner states that Respondent did not complete the necessary forms that would permit him to
enter into a halfway house for twelve (12) months upon his release from Edgefield FCI. (Id. at 8.)
The Magistrate Judge’s Report and Recommendation, filed on June 27, 2017, recommends
that Petitioner’s Petition be dismissed with prejudice for lack of prosecution. (ECF No. 15.) On
April 28, 2017, Respondent filed a Motion for Summary Judgment (“Motion”) requesting that
Petitioner’s Petition for Writ of Habeas Corpus be denied. (ECF No. 6.) On April 28, 2017, the
court provided Petitioner a notice regarding summary judgment procedures and the possible
consequences if he failed to respond adequately to the court’s Order. (ECF No. 7.)

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Petitioner reported that he filed a Petition to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255 pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015), in the United States
District Court, Northern District of Georgia. (ECF No. 1 at 5.) However, this petition was denied.
Kevin Sams v. United States of America, No. 4:16-cv-00248-ELR (N.D. Ga. Mar. 21, 2017).
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Notwithstanding the notice, Petitioner failed to respond to Respondent’s Motion. Due to Petitioner
proceeding pro se, the court, on June 7, 2017, issued an Order informing Petitioner it appeared that
he was not opposing Respondent’s Motion and wished to abandon his Petition. (ECF No. 12.) The
court ordered Petitioner to advise it as to whether he wished to continue with his Petition and to
file a response to Respondent’s Motion within fourteen (14) days from this Order. (Id.) Petitioner
was specifically notified that if he failed to respond, his Petition would be recommended for
dismissal with prejudice for failure to prosecute. (Id.) Despite this Order, Petitioner failed to
respond to Respondent’s Motion. The Report and Recommendation sets forth in detail the relevant
facts and legal standards on this matter, and the court incorporates the Magistrate Judge’s
recommendation herein without a recitation.
The Magistrate Judge’s Report and Recommendation 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
makes only a recommendation to this court. The recommendation has no presumptive weight. The
responsibility to make a final determination remains with this court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objections are made, and the court may
accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation or recommit
the matter with instructions. See 28 U.S.C. § 636(b)(1).
Petitioner was advised of his right to file objections to the Report and Recommendation
(ECF No. 15 at 3.) However, Petitioner filed no objections to the Report and Recommendation.
In the absence of objections to the Magistrate Judge’s Report and Recommendation, this court is
not required to provide an explanation for adopting the recommendation. Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983). Rather, “in the absence of a timely filed objection, a district court

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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, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s
note). Furthermore, failure to file specific written objections to the Report and Recommendation
results in a party’s waiver of the right to appeal from the judgment of the District Court based upon
such recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v.
Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
After a thorough review of the Report and Recommendation and the record in this case,
the court adopts the Magistrate Judge’s Report and Recommendation and incorporates it herein.
(ECF No. 15.) It is therefore ORDERED that Petitioner’s Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2241 (ECF No. 1) is DISMISSED with prejudice for lack of prosecution.
IT IS SO ORDERED.

United States District Judge
July 17, 2017
Columbia, South Carolina

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