Culp v. State of South Carolina

Filing 21

ORDER ADOPTING THE REPORT AND RECOMMENDATION, granting respondent's motion for summary judgment and denying a certificate of appealability, for 17 Report and Recommendations. Signed by Honorable Henry F Floyd on December 6, 2010. (kbos)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION FREDRICK YVONNE CULP, #303857, Petitioner, vs. WARDEN OF LEE CORRECTIONAL INSTITUTION, Respondent. § § § § CIVIL ACTION NO. 3:10-946-HFF -JRM § § § § 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 be granted, and the petition dismissed without an evidentiary hearing. 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 November 15, 2010, and the Clerk of Court entered Petitioner's objections to the Report on December 1, 2010. The Court has reviewed Petitioner's objections, but finds them to be without merit. Therefore, it will enter judgment accordingly. After a thorough review of the Report and the record in this case pursuant to the standard set forth above, the Court overrules Petitioner's objections, adopts the Report and incorporates it herein. Therefore, it is the judgment of this Court that Respondent's motion for summary judgment is GRANTED, and the petition is DISMISSED without an evidentiary hearing. To the extent that Petitioner requests a certificate of appealability from this Court, that certificate is DENIED. IT IS SO ORDERED. Signed this 6th day of December, 2010, in Spartanburg, South Carolina.

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

***** 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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