Myers v. South Carolina, State of

Filing 22

OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION adopting 12 Report and Recommendation, dismissing petition without prejudice and without issuance and service of process. Signed by Honorable Cameron McGowan Currie on 10/4/2013. (jpet, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA AIKEN DIVISION Dameon Myers, ) ) Petitioner, ) ) v. ) ) State of South Carolina, ) ) Respondent. ) ___________________________________ ) C/A NO. 1:13-1863-CMC-SVH OPINION and ORDER This matter is before the court on Petitioner’s pro se petition for writ of error coram nobis. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(c), DSC, this matter was referred to United States Magistrate Judge Shiva V. Hodges for pre-trial proceedings and a Report and Recommendation (“Report”). On September 12, 2013, the Magistrate Judge issued a Report recommending that the petition be dismissed without prejudice and without issuance and service of process. The Magistrate Judge advised Petitioner of the procedures and requirements for filing objections to the Report and the serious consequences if he failed to do so. Petitioner filed an “appeal” of the Report on September 26, 2013. 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 the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 1 U.S.C. § 636(b). After conducting a de novo review as to objections made, and considering the record, the applicable law, the Report and Recommendation of the Magistrate Judge, and Petitioner’s objections, the court agrees with the conclusions of the Magistrate Judge. Accordingly, the court adopts and incorporates the Report and Recommendation by reference in this Order. Petitioner’s “appeal” notes that he wishes to “appeal” the Report’s “dismiss[al] [of the petition] with prejudice and without service of process.” ECF No. 20. However, as noted above, the Report issued by the Magistrate Judge is a recommendation to this court. Accordingly, this petition is dismissed without prejudice and without issuance and service of process. IT IS SO ORDERED. s/ Cameron McGowan Currie CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE Columbia, South Carolina October 4, 2013 2

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