Nance v. Atkinson
Filing
43
ORDER accepting 23 Report and Recommendation; denying 3 Motion for Writ of Habeas Corpus ad Testificandum to Issue Compelling Petitioners Presence at Evidentiary Hearing; denying 2 Motion to Conduct an Evidentiary Hearing. The Petitioner's § 2241 Petition is dismissed without prejudice and without requiring Respondent to file a return. Signed by Chief Judge Terry L Wooten on 8/18/2014.(ssam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Jimmy Lawrence Nance,
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Petitioner,
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vs.
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Kenny Atkinson, Warden,
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Respondent.
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______________________________________ )
C/A No.: 2:14-cv-744-TLW
ORDER
Petitioner Jimmy Lawrence Nance, proceeding pro se and in forma pauperis, filed this
Petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241, and challenging his
federal conviction and sentence of life imprisonment imposed on September 21, 1993. (Doc. #1).
Also pending before the Court are Petitioner’s Motion to Conduct an Evidentiary Hearing, (Doc.
#2), and Motion for Writ of Habeas Corpus ad Testificandum, (Doc. #3). These matters now
come before this Court for review of the Report and Recommendation (“the Report”) filed on
April 30, 2014, by Magistrate Judge Bruce Howe Hendricks, (Doc. #23), to whom this case was
previously assigned. In the Report, the Magistrate Judge recommends that the § 2241 Petition be
dismissed without prejudice and without requiring respondent to file a return. (Doc. #23). The
Magistrate Judge further recommends that the Petitioner’s pending motions, (Docs. #2, 3), be
denied. (Doc. #23). Plaintiff filed objections to the Report on June 9, 2014. (Doc. #29). The
Court has reviewed the objections. 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
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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, 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 hereby
ACCEPTS the Report. (Doc. #23). The Petitioner’s objections, (Doc. #29), are OVERRULED.
The Petitioner’s § 2241 Petition is dismissed without prejudice and without requiring
Respondent to file a return. In addition, in light of this ruling, the Petitioner’s Motion to Conduct
an Evidentiary Hearing, (Doc. #2), and Motion for Writ of Habeas Corpus ad Testificandum,
(Doc. #3), are DENIED. The Petitioner’s case is hereby DISMISSED.
IT IS SO ORDERED.
s/Terry L. Wooten
Chief United States District Judge
August 18, 2014
Columbia, South Carolina
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