Johnson v. Warden

Filing 21

ORDER ADOPTING 19 Report and Recommendations of Magistrate Judge Bruce Howe Hendricks, and GRANTING 9 Respondent's Motion for Summary Judgment. Petitioner's habeas petition is DISMISSED with prejudice. To the extent that Petitioner requests a certificate of appealability from this Court, thatcertificate is DENIED. Signed by Honorable Henry F Floyd on 5/5/11.(rpol, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
KYRIE JOHNSON,
Petitioner,
vs.
WARDEN OF PERRY CORRECTIONAL
INSTITUTION,
Respondent.

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§ CIVIL ACTION NO. 2:10-3050-HFF-BHH
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ORDER

This case was filed as a 28 U.S.C. § 2254 action. Petitioner is proceeding pro se. The matter
is before the Court for review of the Report and Recommendation (Report) of the United States
Magistrate Judge suggesting that Respondent’s Motion for Summary Judgment (Dkt. # 9) be granted
and Petitioner’s habeas petition be dismissed with prejudice. The Report was made in accordance
with 28 U.S.C. § 636 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 the Court.
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 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 with instructions. 28 U.S.C. § 636(b)(1).

The Magistrate Judge filed the Report on April 13, 2011, but Petitioner failed to file any
objections to the Report. In the absence of such objections, the Court is not required to give any
explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th
Cir. 1985).
After a thorough review of the Report and the record in this case pursuant to the standard set
forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment
of the Court that Respondent’s Motion for Summary Judgment (Dkt. # 9) is GRANTED and
Petitioner’s habeas petition is DISMISSED with prejudice.
To the extent that Petitioner requests a certificate of appealability from this Court, that
certificate is DENIED.
IT IS SO ORDERED.
Signed this 5th day of May, 2011, in Spartanburg, South Carolina.

s/ Henry F. Floyd
HENRY F. FLOYD
UNITED STATES DISTRICT JUDGE

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NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this Order within thirty days from the
date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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