Darby v. Cartledge
Filing
12
ORDER adopting 8 Report and Recommendations of Magistrate Judge Bruce Howe Hendricks dismissing petition without prejudice and without issuance and service of process. The Court concludes that it is not appropriate to issue a certificate of appealability as to the issues raised herein. Signed by Honorable Terry L Wooten on 3/29/12.(hhil, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Christopher G. Darby,
also known as Chris Darby,
)
)
)
Petitioner,
)
)
vs.
)
)
Warden Cartledge,
)
)
Respondent.
)
____________________________________)
Civil Action No.: 2:12-cv-21-TLW-BHH
ORDER
The petitioner, Christopher G. Darby (“petitioner”), brought this civil action, pro se, pursuant
to 28 U.S.C. § 2254 on January 4, 2012. (Doc. # 1).
This matter now comes before this Court for review of the Report and Recommendation (“the
Report”) filed by United States Magistrate Judge Bruce Howe Hendricks to whom this case had
previously been assigned. (Doc. # 8). In the Report, the Magistrate Judge recommends that the
District Court dismiss this petition pursuant to 28 U.S.C. § 2254 without prejudice and without
issuance and service of process. (Doc. # 8). The petitioner filed objections to the Report.1 (Doc.
# 10). In conducting this review, the Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any party
may file written objections . . . . The Court is not bound by the recommendation of
the magistrate judge but, instead, retains responsibility for the final determination.
The Court is required to make a de novo determination of those portions of the report
or specified findings or recommendation as to which an objection is made. However,
1
In his objections, the petitioner requests that the Court withhold ruling on this § 2254
petition until he receives authorization from the Fourth Circuit Court of Appeals for the Court to
consider it. (Doc. # 10). This request is denied.
1
the Court is not required to review, under a de novo or any other standard, the factual
or legal conclusions of the magistrate judge as to those portions of the report and
recommendation to which no objections are addressed. While the level of scrutiny
entailed by the Court’s review of the Report thus depends on whether or not
objections have been filed, in either case the Court is free, after review, to accept,
reject, or modify any of the magistrate judge’s findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992)
(citations omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report and
the objections. After careful review of the Report and objections thereto, the Court ACCEPTS the
Report. (Doc. # 8). Therefore, for the reasons articulated by the Magistrate Judge, this petition
pursuant to 28 U.S.C. § 2254 is DISMISSED without prejudice and without issuance and service
of process.
The Court has reviewed this petition in accordance with Rule 11 of the Rules Governing
Section 2254 Proceedings. The Court concludes that it is not appropriate to issue a certificate of
appealability as to the issues raised herein. The petitioner is advised that he may seek a certificate
from the Fourth Circuit Court of Appeals under Rule 22 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.
s/Terry L. Wooten
United States District Judge
March 29, 2012
Florence, South Carolina
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?