Poux v. Drew

Filing 16

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 the petition for a writ of habeas corpus is DISMISSED without prejudice and without requiring a response by Respondent. To the extent that Petitioner requests a certificate of appealability from this Court, that certificate is DENIED. Signed by Honorable Henry F Floyd on 10/25/2010. (dsto, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION ERNESTO POUX, JR., Petitioner, vs. DARLENE DREW, Warden, Respondent. § § § § § § §

CIVIL ACTION NO. 4:10-1684-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 the petition for a writ of habeas corpus be dismissed without prejudice and without requiring a response by 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 September 22, 2010, and the Clerk of Court entered Petitioner's objections to the Report on October 8, 2010. The Court has reviewed the 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 the petition for a writ of habeas corpus is DISMISSED without prejudice and without requiring a response by Respondent. Included in his objections, Petitioner moves the Court for the appointment of counsel. In that he has failed to set forth any exceptional circumstances that would make the granting of the motion proper, however, the motion is DENIED. To the extent that Petitioner requests a certificate of appealability from this Court, that certificate is DENIED. IT IS SO ORDERED. Signed this 25th day of October, 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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