Wiggins v. Whitlock et al

Filing 19

ORDER RULING ON REPORT AND RECOMMENDATION. The Court ACCEPTS the Report 14 . Therefore, for the reasons articulated by the Magistrate Judge, this case is DISMISSED without prejudice and without issuance and service of process. Signed by Honorable Terry L Wooten on 7/8/2011. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Samuel Travis Wiggins,

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Petitioner,
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vs.
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Michelle Whitlock; South Carolina
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Probation, Parole and Pardon Services,
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Lexington, SC Director,
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Respondents.
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____________________________________)

Civil Action No.: 1:11-cv-701-TLW-SVH

ORDER
The petitioner, Samuel Travis Wiggins (“petitioner”), proceeding pro se, brought this civil
action, which has been construed as a petition for a writ of habeas corpus. (Doc. #1).
This matter now comes before this Court for review of the Report and Recommendation (“the
Report”) filed by United States Magistrate Judge Shiva V. Hodges to whom this case had previously
been assigned. (Doc. # 14). In the Report, the Magistrate Judge recommends that the District Court
dismiss this case without prejudice and without issuance and service of process. (Doc. # 14). The
petitioner filed objections to the Report.1 (Doc. # 16). In conducting this review, the Court applies
the following standard:
The magistrate judge makes only a recommendation to the Court, to which any party
may file written objections . . . . The Court is not bound by the recommendation of
the magistrate judge but, instead, retains responsibility for the final determination.
The Court is required to make a de novo determination of those portions of the report
or specified findings or recommendation as to which an objection is made. However,
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In his objections to the Report, the petitioner requests that the Court reserve his right to pursue this lawsuit
in the future after he exhausts his state legal and administrative remedies. (Doc. # 16).

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the Court is not required to review, under a de novo or any other standard, the factual
or legal conclusions of the magistrate judge as to those portions of the Report and
Recommendation to which no objections are addressed. While the level of scrutiny
entailed by the Court’s review of the Report thus depends on whether or not
objections have been filed, in either case, the Court is free, after review, to accept,
reject, or modify any of the magistrate judge’s findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citations
omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report and
the objections. After careful review of the Report and objections thereto, the Court ACCEPTS the
Report. (Doc. # 14). Therefore, for the reasons articulated by the Magistrate Judge, this case is
DISMISSED without prejudice and without issuance and service of process.
The Court has reviewed this petition in accordance with Rule 11 of the Rules Governing
Section 2254 Proceedings. The Court concludes that it is not appropriate to issue a certificate of
appealability as to the issues raised herein. The petitioner is advised that he may seek a certificate
from the Fourth Circuit Court of Appeals under Rule 22 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.
s/Terry L. Wooten
United States District Judge
July 8, 2011
Florence, South Carolina

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