Gay v. McMasters et al

Filing 11

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing the petition without prejudice and without issuance and service of process, for 7 Report and Recommendations. Signed by Honorable Cameron McGowan Currie on July 16, 2009. (kbos)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION ) ) Petitioner, ) ) v. ) ) Henry D. McMasters; Mark Sanford; ) Warden Padula, L.C.I., ) ) Respondents. ) ___________________________________ ) Donald Gay, #244300, C/A NO. 3:09-1681-CMC-JRM ORDER

This matter is before the court on the pro se application for writ of habeas corpus, filed in this court pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(c), DSC, this matter was referred to United States Magistrate Judge Joseph R. McCrorey for pre-trial proceedings and a Report and Recommendation ("Report"). On June 30, 2009, the Magistrate Judge issued a Report recommending that this petition be dismissed without issuing process to Respondents and without prejudice. The Magistrate Judge advised Petitioner of the procedures and requirements for filing objections to the Report and the serious consequences if he failed to do so. Petitioner filed objections to the Report on July 14, 2009. 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. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by

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the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). After reviewing the record of this matter, the applicable law, the Report and Recommendation of the Magistrate Judge, and Petitioner's objections, the court agrees with the conclusions of the Magistrate Judge. Accordingly, the court adopts and incorporates the Report and Recommendation by reference in this Order. This petition is successive in nature. As this court is without jurisdiction to consider it, it is dismissed without prejudice and without issuance and service of process upon Respondents. IT IS SO ORDERED. s/ Cameron McGowan Currie CAMERON MCGOWAN CURRIE UNITED STATES DISTRICT JUDGE Columbia, South Carolina July 16, 2009
C:\Documents and Settings\Kgb07\Local Settings\Temp\notesE1EF34\09-1681 Gay v. McMasters adopt rr dism wo svc successive petition.wpd

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