Carpenter v. Eagleton

Filing 20

ORDER adopting 13 Report and Recommendation and dismissing 1 Petition without prejudice and without requiring Respondent to file a return. A certificate of appealability is denied. Signed by Honorable Henry M Herlong, Jr on 5/17/2017. (mwal)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA AIKEN DIVISION Joseph A. Carpenter, #370459, Petitioner, vs. Willie Eagleton, Warden, Respondent. ) ) ) ) ) ) ) ) ) C.A. No. 1:17-867-HMH-SVH OPINION & ORDER This matter is before the court with the Report and Recommendation of United States Magistrate Judge Shiva V. Hodges, made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 of the District of South Carolina.1 Joseph A. Carpenter (“Carpenter”) is a pro se state prisoner seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. In her Report and Recommendation, Magistrate Judge Hodges recommends dismissing Carpenter’s § 2254 petition without prejudice and without requiring Respondent to file a return. Carpenter filed objections to the Report and Recommendation.2 Objections to the Report and Recommendation must be specific. Failure to file specific objections constitutes a 1 The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the United States District Court. See Mathews v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which 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 with instructions. 28 U.S.C. § 636(b)(1) (2006). 2 Having received no objections, the court entered an order adopting the Report and Recommendation. However, later the same day the court received the instant objections. Therefore, the court will vacate its previous order and consider Carpenter’s objections. 1 waiver of a party’s right to further judicial review, including appellate review, if the recommendation is accepted by the district judge. See United States v. Schronce, 727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections to the Report and Recommendation of the magistrate judge, this court is not required to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Upon review, the court finds that Carpenter’s objections are non-specific, unrelated to the dispositive portions of the magistrate judge’s Report and Recommendation, or merely restate his claims. Therefore, after a thorough review of the magistrate judge’s Report and the record in this case, the court adopts Magistrate Judge Hodges’ Report and Recommendation and incorporates it herein. It is therefore ORDERED that the previous order adopting the Report and Recommendation is vacated. It is further ORDERED that the petition, docket number 1, is dismissed without prejudice and without requiring Respondent to file a return. It is further ORDERED that a certificate of appealability is denied because Carpenter has failed to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. s/Henry M. Herlong, Jr. Senior United States District Judge Greenville, South Carolina May 17, 2017 2 NOTICE OF RIGHT TO APPEAL The Petitioner is hereby notified that he has the right to appeal this order within thirty (30) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. 3

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