King v. McFadden
Filing
38
ORDER ADOPTING 36 REPORT AND RECOMMENDATION. It is ordered that Petitioner's Motion to Hold in Abeyance 23 is denied and Respondent's Motion for Summary Judgment 19 is granted. Signed by Honorable J Michelle Childs on 12/31/2014. (mwal)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Andre King,
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)
Petitioner,
)
)
v.
)
)
Warden McFadden,
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)
Respondent.
)
____________________________________)
Civil Action No.: 1:14-cv-00091-JMC
ORDER
Petitioner, proceeding pro se, brought this action seeking relief pursuant to 28 U.S.C. § 2254.
This matter is before the court for review of the magistrate judge's Report and Recommendation
(“Report”), (ECF No. 36), filed on December 09, 2014, recommending that Petitioner’s Motion to
Hold in Abeyance (ECF No. 23), be denied and grant Respondent’s Motion for Summary Judgment
(ECF No. 19). 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. See 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).
1
Petitioner was advised of his right to file objections to the Report and Recommendation
(ECF No. 36 at 21]. 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. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in the absence of a timely filed objection, a
district court 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).
Therefore, after a thorough and careful review of the Report and the record in this case, the
court finds the Report provides an accurate summary of the facts and law and the record in this case.
The court ADOPTS the magistrate judge’s Report and Recommendation (ECF No. 36). It is
therefore ORDERED that Petitioner’s Motion to Hold in Abeyance (ECF No. 23) is DENIED and
Respondent’s Motion for Summary Judgment (ECF No. 19) is GRANTED.
IT IS SO ORDERED.
2
United States District Judge
December 31, 2014
Greenville, South Carolina
3
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