Kitzmiller v. Barnes

Filing 17

ORDER RULING ON REPORT AND RECOMMENDATION: After a thorough review of the 11 Report, the applicable law, and the record of this case in accordance with the above standard, the Court finds no clear error, adopts the 11 R eport, and incorporates the 11 Report by reference herein. Accordingly, the Petition for a Writ of Habeas Corpus, ECF No. 1 , is DISMISSED without prejudice and without requiring the respondent to file a return. Signed by Honorable Sherri A Lydon on 3/31/2021. (prou, )

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION Derrick Dakota Stone Kitzmiller, aka Derrick D. Kitzmiller Case No. 4:20-cv-02264-SAL Petitioner, v. ORDER Nanet Barnes, Respondent. This matter is before the Court for review of the September 16, 2020 Report and Recommendation (“Report”) of United States Magistrate Judge Thomas E. Rogers, III, made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). [ECF No. 11]. In the Report, the Magistrate Judge recommends the Petition for a Writ of Habeas Corpus, ECF No. 1, be dismissed without prejudice and without requiring the Respondent to file a return. [ECF No. 11 p.7]. No party filed objections to this Report, and the time to do so has passed. See [ECF No. 11]. 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 this Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo determination of only those portions of the Report that have been specifically objected to, and the Court may accept, reject, or modify the Report, in whole or in part. 28 U.S.C. § 636(b)(1). In the absence of objections, the Court is not required to provide an explanation for adopting the Report and must “only satisfy itself that there is no clear error on the face of the record 1 in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (citing Fed. R. Civ. P. 72 advisory committee’s note). After a thorough review of the Report, the applicable law, and the record of this case in accordance with the above standard, the Court finds no clear error, adopts the Report, and incorporates the Report by reference herein. Accordingly, the Petition for a Writ of Habeas Corpus, ECF No. 1, is DISMISSED without prejudice and without requiring the respondent to file a return. IT IS SO ORDERED. /s/Sherri A. Lydon Sherri A. Lydon United States District Judge March 31, 2021 Florence, South Carolina 2

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