Barber v. Rivera

Filing 23

ORDER RULING ON REPORT AND RECOMMENDATION. The court adopts the Magistrate Judge's Report and Recommendation 20 and incorporates it herein. It is therefore ORDERED that the § 2241 Petition in the above-caption case is DISMISSED without prejudice and without requiring Respondent to file an answer or return. Signed by Honorable Timothy M Cain on 1/11/2012. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Donald R. Barber,

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Petitioner,
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v.
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Mildred L. Rivera, Warden FCI Estill,
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Respondent.
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________________________________ )

C/A No. 4:11-2579-TMC

OPINION & ORDER

Petitioner, a federal prisoner proceeding pro se, filed this Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. In accordance with 28 U.S.C. § 636(b)
and Local Rule 73.02, D.S.C., all pre-trial proceedings were referred to a Magistrate
Judge. On December 13, 2011, Magistrate Judge Thomas E. Rogers, III, issued a
Report and Recommendation ("Report") recommending the Petition be dismissed
without prejudice and without requiring Respondent to file an Answer or return. (Dkt. #
20). The Report and Recommendation sets forth in detail the relevant facts and legal
standards on this matter, and the court incorporates the Magistrate Judge’s Report
herein without a recitation.
The Magistrate Judge’s Report and Recommendation is 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.

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 and
Recommendation (Dkt. # 20 at 8). 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). Furthermore, failure to file specific written objections to the Report and
Recommendation 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).
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. #
20) and incorporates it herein. It is therefore ORDERED that the § 2241 Petition in the
above-captioned case is DISMISSED without prejudice and without requiring

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Respondent to file an answer or return.
IT IS SO ORDERED.
s/ Timothy M. Cain
United States District Judge
Greenville, South Carolina
January 11, 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.

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