McKelvey v. Rivera et al

Filing 20

ORDER RULING ON REPORT AND RECOMMENDATIONS.The Court overrules Petitioners objections, adopts the Report and incorporates it herein. Therefore, it is the judgment of this Court that this case is DISMISSED without prejudice andwithout issuance and service of process upon Respondent. To the extent that Petitioner requests a certificate of appealability from this Court, thatcertificate is DENIED. Signed by Honorable Henry F Floyd on 07/27/2010. (dsto, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION JOHNNIE ELVIN MCKELVEY, Petitioner, vs. MICHAEL L. RIVERA, Warden, Respondent. § § § § § § §

CIVIL ACTION NO. 4:10-422-HFF-TER

ORDER This case was filed as a 28 U.S.C. § 2241 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 this case be dismissed without prejudice and without issuance and service of process upon Respondent. 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 June 18, 2010, and the Clerk of Court entered Petitioner's objections to the Report on July 12, 2010. The Court has reviewed the objections, but finds them to be unavailing. 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 this case is DISMISSED without prejudice and without issuance and service of process upon Respondent. To the extent that Petitioner requests a certificate of appealability from this Court, that certificate is DENIED. IT IS SO ORDERED. Signed this 27th day of July, 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 sixty days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

2