Cox v. McCabe

Filing 9

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing the habeas petition without prejudice and without issuance and service of process, for 7 Report and Recommendation. Signed by Honorable Timothy M Cain on April 9, 2012. (kbos)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Paul Leslie Cox,

#75206,
Petitioner,

v.
Warden McCabe, Lieber Dept. of
Corr.,
Respondent.
___________________________

)
)
)
)
)
)
)
)
)
)
)

C/A No. 3:12-162-TMC

ORDER

Petitioner, Paul Leslie Cox, a state prisoner proceeding pro se, filed this Petition
for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Petitioner is currently
incarcerated at Lieber Correctional Institution. In accordance with 28 U.S.C. § 636(b)
and Local Rule 73.02(B)(2), D.S.C., all pre-trial proceedings were referred to a
Magistrate Judge. On March 13, 2012, Magistrate Judge Joseph R. McCrorey, issued
a Report and Recommendation ("Report") recommending the Petition be construed as a
Habeas Petition filed pursuant to 28 U.S.C. § 2254, and that it be dismissed without
prejudice and without issuance and service of process upon the Respondent. (Dkt. #
7). 1

1

The Report sets forth in detail the relevant facts and legal standards on this

As the Magistrate Judge noted, Petitioner submitted his claims on a form used to file for
habeas relief pursuant to 28 U.S.C. § 2241. However, Petitioner is challenging a state
conviction, and, as the Magistrate Judge did, this court construes this Petition as an
action filed pursuant to 28 U.S.C. § 2254. See Montez v. McKinna, 208 F.3d 862, 865
(10th Cir.2000) (stating § 2254 petitions challenge the validity of a state court conviction
and sentence whereas § 2241 petitions generally challenge the execution or

matter, and the court incorporates the Magistrate Judge’s Report herein without a
recitation.
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 this court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court is charged with making a de novo determination of those portions of
the Report and Recommendation to which specific objections are made, and the court
may accept, reject, or modify, in whole or in part, the Magistrate Judge’s
recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
Petitioner was advised of his right to file objections to the Report (Dkt. # 7 at 7).
However, Petitioner filed no objections to the Report.
In the absence of objections to the Magistrate Judge’s Report, this court is not
required to provide an explanation for adopting the recommendation. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in the absence of a timely filed
objection, a district court need not conduct a de novo review, but instead must only
satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note). Furthermore, failure
to file specific written objections to the Report results in a party’s waiver of the right to
appeal from the judgment of the District Court based upon such recommendation. 28
U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d
841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

implementation of a sentence, such as transfers).

After a thorough review of the Report and the record in this case, the court
adopts the Magistrate Judge’s Report and Recommendation (Dkt. # 7) and incorporates
it herein. It is therefore ORDERED that the Habeas Petition in the above-captioned
case is DISMISSED without prejudice and without issuance and service of process
upon the Respondent.
IT IS SO ORDERED.
s/ Timothy M. Cain
United States District Judge
Greenville, South Carolina
April 9, 2012

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules
3 and 4 of the Federal Rules of Appellate Procedure.