Guerra v. Atkinson

Filing 42

ORDER RULING ON REPORT AND RECOMMENDATION. The court adopts and incorporates the Report and Recommendation (ECF No. 37 ) by reference into this order. It is therefore ORDERED that Respondents motion for summary judgment (ECF No. 26 ) is GRANTED, Petitioners motion for summary judgment (ECF No. 25 ) is DENIED, and the petition for writ of habeas corpus is DISMISSED. Petitioners motion to Strike (ECF No. 39 ) is DENIED as moot. Signed by Honorable Mary G Lewis on 04/10/2014. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
) Civil Action No.: 4:13-2062-MGL
)
Petitioner, )
)
v.
)
OPINION AND ORDER
)
Kenny Atkinson,
)
)
Respondent. )
_______________________________________ )

Allister D. Guerra,

On July 23, 20131, Petitioner Allister D. Guerra (“Petitioner”), an inmate housed at the
Federal Correctional Institution in Edgefield, South Carolina, filed the instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1). In accordance with 28 U.S.C.
§ 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this matter was referred to United States
Magistrate Judge Thomas E. Rogers, III, for pre-trial proceedings and a Report and
Recommendation (“Report”).
On March 17, 2014, the Magistrate Judge issued a Report recommending that the court grant
Respondent’s motion to dismiss or, in the alternative, motion for summary judgment, deny
Petitioner’s motion for summary judgment, and dismiss Petitioner’s petition. (ECF No. 37). The
Magistrate Judge advised Petitioner of the procedures and requirements for filing objections to the
Report and Recommendation and the serious consequences if he failed to do so. (ECF No. 37-1).
Petitioner has filed no objections and the time for doing so expired on April 3, 2014. Subsequent
to the filing of the Report, Petitioner filed a motion to strike Respondent’s reply to his response to

1

This filing date reflects that the envelope containing the petition was stamped as having been
received on July 23, 2013, by the Federal Prison in Edgefiled, SC. (ECF No.1-1). Houston v. Lack, 487
U.S. 266 (1988) (holding prisoner’s pleading is considered filed when filed with prison authorities for
forwarding to the district court).

the motion to dismiss or, in the alternative, motion for summary judgment. (ECF No. 39).
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, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged
with making a de novo determination of any portion of the Report and Recommendation 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 the Magistrate Judge or recommit the matter to
the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). 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).
After a careful review of the record, the applicable law, and the Report and Recommendation
of the Magistrate Judge, the court finds no clear error. Accordingly, the court adopts and
incorporates the Report and Recommendation (ECF No. 37) by reference into this order. It is
therefore ORDERED that Respondent’s motion for summary judgment (ECF No. 26) is GRANTED,
Petitioner’s motion for summary judgment (ECF No. 25) is DENIED, and the petition for writ of
habeas corpus is DISMISSED. Petitioner’s motion to Strike (ECF No. 39) is DENIED as moot.
IT IS SO ORDERED.
/s/ Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
April 10, 2014

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