-SVH Lisenby v. Cohen

Filing 59

ORDER denying as moot 35 Motion for Summary Judgment; denying as moot 43 Motion ; denying as moot 47 Motion to Appoint Counsel ; affirming 56 Report and Recommendations.; denying as moot 23 Motion to Amend/Correct; denying as moot 25 Motion to Compel. Signed by Chief Judge David C Norton on 8/19/2010.(eric, )

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Lisenby v. Cohen Doc. 59 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA BILLY LEE LISENBY, JR., #200273, a/k/a MALIK AL-SHABAZZ, ) ) ) Petitioner, ) ) vs. ) ) LEVERN COHEN, WARDEN OF RIDGELAND ) CORRECTIONAL INSTITUTION, ) ) Respondent. ) ______________________________________ ) C/A No. 1:09-2627 DCN ORDER The above referenced case is before this court upon the magistrate judge's recommendation that the habeas petition be dismissed without prejudice, and respondent's Motion for Summary Judgment, as well as petitioner's pending motions, be denied as moot. This court is charged with conducting a de novo review of any portion of the magistrate judge's report to which a specific objection is registered, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. 636(b)(1). However, absent prompt objection by a dissatisfied party, it appears that Congress did not intend for the district court to review the factual and legal conclusions of the magistrate judge. Thomas v Arn, 474 U.S. 140 (1985). Additionally, any party who fails to file timely, written objections to the magistrate judge's report pursuant to 28 U.S.C. 636(b)(1) waives the right to raise those objections at the appellate court level. United States v. Dockets.Justia.com Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984 ).1 No objections have been filed to the magistrate judge's report and recommendation. A de novo review of the record indicates that the magistrate judge's report accurately summarizes this case and the applicable law. Accordingly, the magistrate judge's report and recommendation is AFFIRMED, and the habeas petition is DISMISSED without prejudice. IT IS FURTHER ORDERED that respondent's Motion for Summary Judgment [#35], as well as petitioner's pending motions [#22, 23, 25, 43, and 47] are DENIED as moot. 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). AND IT IS SO ORDERED. David C. Norton Chief United States District Judge Charleston, South Carolina August 19, 2010 NOTICE OF RIGHT TO APPEAL The parties are hereby notified that any right to appeal this Order is governed by Rules 3 and 4 of the Federal Rules of Appellate Procedure. In Wright v. Collins, 766 F.2d 841 (4th Cir. 1985), the court held "that a pro se litigant m u st receive fair notification of the consequences of failure to object to a magistrate judge's rep o rt before such a procedural default will result in waiver of the right to appeal. The notice m u st be 'sufficiently understandable to one in appellant's circumstances fairly to appraise him o f what is required.'" Id. at 846. Plaintiff was advised in a clear manner that his objections had to be filed within ten (10) days, and he received notice of the consequences at the appellate lev el of his failure to object to the magistrate judge's report. 1

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