Cleveland v. Cohen

Filing 12

ORDER ADOPTING the REPORT AND RECOMMENDATIONS. This action is dismissed without prejudice and without issuance and service of process. Signed by Honorable Joseph F Anderson, Jr on 4/12/10. (ltap, )

U N I T E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA

J e f fre y Cleveland,

) ) P e t i t io n e r , ) v. ) ) L e v e rn Cohen ) ) R e sp o n d e n t. ) _________________________________ )

C /A No. 2:10-414-JFA-RSC

ORDER

P e titio n e r Jeffrey Cleveland, a state prisoner proceeding without assistance of counsel, s e e k s habeas corpus relief under 28 U.S.C.§ 2241 concerning a prison disciplinary action w h e r e in he was found guilty of possession of narcotics. T h e Magistrate Judge assigned to this action 1 has prepared a Report and R e c o m m e n d a tio n and opines that the petitioner has not exhausted his state remedies, and as s u c h , the petition should be dismissed. The Report sets forth in detail the relevant facts and s ta n d a r d s of law on this matter, and the court incorporates such without a recitation and w ith o u t a hearing. T h e petitioner was advised of his right to file objections to the Report and R e c o m m e n d a tio n , which was entered on the docket on February 24, 2010. Petitioner filed

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. 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. Mathews v. Weber, 423 U.S. 261 (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, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).

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tim e ly objections. However, his objections merely contend that he did not exhaust his state r e m e d ie s by properly appealing the dismissal of the Administrative Law Judge's decision b e c au s e "to appeal a correct order would be frivolous." Such objections are overruled. A f te r a careful review of the record, the applicable law, the Report and R e c o m m e n d a tio n , and the petitioner's objections thereto, the court finds the Magistrate J u d g e 's recommendation to be proper and incorporates the Report herein by reference. A c c o rd in g ly, this action is dismissed without prejudice and without issuance and service of process. IT IS SO ORDERED.

A p ril 12, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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