Rudisill v. Drew

Filing 20

ORDER RULING ON REPORT AND RECOMMENDATIONS. The court adopts and incorporates the Report and Recommendation by reference in this Order. Petitioners motion to amend 17 is granted. The Clerk shall file the amended petition as of the filing date of this Order. The petition and the amended petition are dismissed without prejudice and without serviceupon Respondent. Signed by Honorable Cameron McGowan Currie on 07/11/2011. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Dwight A. Rudisill, #14698-058,

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Petitioner,
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v.
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Darlene Drew, Warden,
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Respondent.
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___________________________________ )

C/A NO. 4:11-956-CMC-TER

OPINION and ORDER

This matter is before the court on Petitioner’s pro se application for writ of habeas corpus,
filed in this court pursuant to 28 U.S.C. § 2241.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(c), DSC, this
matter was referred to United States Magistrate Judge Thomas E. Rogers, III, for pre-trial
proceedings and a Report and Recommendation (“Report”). On June 21, 2010, the Magistrate Judge
issued a Report recommending that this matter be dismissed without prejudice and without issuance
and service of process on Respondent. The Magistrate Judge advised Petitioner of the procedures
and requirements for filing objections to the Report and the serious consequences if he failed to do
so. Instead of objections, Petitioner has filed a motion to amend his § 2241 petition and a proposed
petition.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court.
See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of any portion of the Report of the Magistrate Judge to which a specific objection is
made. The court may accept, reject, or modify, in whole or in part, the recommendation made by
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the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an objection.
See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that
“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.”) (citation omitted).
After reviewing the record of this matter, the applicable law, and the Report and
Recommendation of the Magistrate Judge, the court agrees with the conclusions of the Magistrate
Judge. Accordingly, the court adopts and incorporates the Report and Recommendation by
reference in this Order.
Petitioner’s motion to amend is granted. The Clerk shall file the amended petition as of the
filing date of this Order. However, the amended petition does not cure the deficiency inherent in
Petitioner’s attempt to challenge his conviction and sentence through the use of a § 2241 petition.
The petition and the amended petition are dismissed without prejudice and without service
upon Respondent.
IT IS SO ORDERED.

s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE

Columbia, South Carolina
July 11, 2011

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