Cox v. McCabe

Filing 10

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing the petition without prejudice and without issuance and service of process. FURTHER ORDERED that a certificate of appealability is denied, for 7 Report and Recommendations. Signed by Honorable Timothy M Cain on April 24, 2012. (kbos)

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

#75206,

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Petitioner,
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v.
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Warden Wayne McCabe,
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Respondent.
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________________________________)

C/A No. 3:12-226-TMC

ORDER

Petitioner, a state prisoner proceeding pro se, filed this action pursuant to 28
U.S.C. § 2241.

This matter is before the court for review of the Report and

Recommendation of the United States Magistrate Judge Joseph R. McCrorey made in
accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of
South Carolina.
The Magistrate Judge makes only a recommendation to this court.
recommendation has no presumptive weight.

The

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 and
Recommendation. (Dkt. # 7 at 7). However, Petitioner filed no objections to the Report
and Recommendation. In the absence of objections to the Magistrate Judge’s Report
and Recommendation, 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).
After a thorough review of the Report and Recommendation 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 Petitioner’s Habeas
Petition is DISMISSED without prejudice and without issuance and service of process
upon the Respondent.
It is further ORDERED that a certificate of appealability is denied because
Petitioner has failed to make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Greenville, South Carolina
April 24, 2012