Jones v. Bragg
ORDER RULING ON REPORT AND RECOMMENDATION: The court adopts and incorporates the Report and Recommendation (ECF No. 8 ) by reference into this order. It is therefore ORDERED that this action is DISMISSED without prejudice and without requiring Respondent to file a return. IT IS SO ORDERED. Signed by Honorable Bruce Howe Hendricks on 12/21/2015. (mcot, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Civil Action No.: 4:15-4193-BHH
Franklin S. Jones
Opinion and Order
T. Bragg, Warden,
This matter is before the Court upon the Magistrate Judge’s Report and
Recommendation (“Report”) (ECF No. 8), which recommends that the § 2241 petition
be dismissed without prejudice and without requiring the respondent to file a return.
For the reasons set forth below, the Court agrees with the Report and dismisses the
petition without prejudice.
Petitioner, Franklin S. Jones, a federal prisoner confined at Federal Correctional
Institution Bennettsville, who is proceeding pro se, brought this action pursuant to 28
U.S.C. § 2241 alleging he is being wrongfully detained. As set forth in greater detail in
the report, Petitioner contends that he was incorrectly classified as a “career offender”
under United States Sentencing Guideline § 4B1.1 (USSG). Petitioner seeks to be
resentenced “without the career offender designation.” (ECF No. 1.)
Pursuant to 28 U.S.C. § 636(b) (1)(B) and Local Civil Rule 73.02(B)(2)(d)
(D.S.C.), the case was assigned to Magistrate Judge Thomas E. Rogers. On October
30, 2015, the Magistrate Judge issued a Report recommending that the § 2241 petition
be dismissed without prejudice and without requiring Respondent to file a return.
Petitioner has filed no objections and the time for doing so expired on November 16,
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court. The
recommendation has no presumptive weight.
The responsibility to make a final
determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 270–
71, 96 S.Ct. 549, 46 L.Ed.2d 483 (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 court is obligated to conduct a de novo review of every portion of the Report
to which specific objections have been filed. Id. However, the court need not conduct
a de novo review when a party makes only “general and conclusory objections that do
not direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (“[D]e novo
review [is] unnecessary in . . . situations when a party makes general and conclusory
objections that do not direct the court to a specific error in the magistrate’s proposed
findings and recommendation.”). Furthermore, in the absence of a timely filed, specific
objection, the Magistrate Judge’s conclusions are reviewed only for clear error. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
After a careful review of the record, the applicable law, and the Report of the
Magistrate Judge, the court finds no clear error. Accordingly, the court adopts and
incorporates the Report and Recommendation (ECF No. 8) by reference into this order.
It is therefore ORDERED that this action is DISMISSED without prejudice and without
requiring Respondent to file a return.
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
United States District Judge
December 21, 2015
Greenville, South Carolina
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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