Lotharp v. Joseph

Filing 13

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the R&R (Dkt. No. 9) as the Order of the Court and denies and dismisses Petitioner's petition for habeas relief without prejudice and without requiring Respondent to file a return. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 2/6/24. (ltap, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Zannie J. Lotharp, a/k/a Zannie Jay
Lotharp,
v.

Case No. 4:24-cv-136-RMG

Petitioner,

ORDER

Warden M. Joseph,
Respondent.
This matter is before the Court on the Report and Recommendation (“R&R”) of the
Magistrate Judge, recommending that the Court deny and dismiss Petitioner’s petition for habeas
relief under 28 U.S.C. § 2241. (Dkt. No. 9). Petitioner did not object to the R&R. For the reasons
set forth below, the Court adopts the R&R as the order of the Court and denies and dismisses
Petitioner’s petition for habeas relief without prejudice and without requiring Respondent to file a
return.
I.

Background
Petitioner, who is an inmate in a federal prison in Bennettsville, South Carolina, requests

habeas relief on the ground that he is a not a person within the meaning of the Fourteenth
Amendment and seeks his immediate release from custody. (Dkt. No. 1-1 at 2,8). On January 18,
2024, the Magistrate Judge issued an R&R recommending that the Petition be dismissed without
prejudice and without requiring the respondent to file a return. (Dkt. No. 9). The Magistrate Judge
noted that Petitioner filed a very similar petition previously, which was dismissed by this Court on
November 7, 2023 as “legally frivolous and fails to state a cognizable claim under § 2241. Lotharp
v. Joseph, C.A. No. 4:23-4769 (D.S.C. 2023). Petitioner was advised that he had 14 days from
receipt of the R & R to file written objections, and if he failed to do so, limited clear error review

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would be conducted by the District Court and there would be a waiver of the right to appeal. (Dkt.
No. 9 at 4). Petitioner did not object to the R&R. This matter is ripe for the Court’s review.
II.

Legal Standard 
The Magistrate Judge makes only a recommendation to this Court. The recommendation

has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). This Court is charged with
making a de novo determination of those portions of the Report and Recommendation to which
specific objection is made. Additionally, the Court may “accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
Where the Petitioner fails to file any specific objections, “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.” See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). Because Petitioner did not file
objections to the R&R, the Court reviews the R&R for clear error.
III.

Discussion
The Court finds that the Magistrate Judge ably addressed the issues and correctly concluded

that Petitioner’s petition should be dismissed without prejudice and without requiring the
Respondent to file a return.
Conclusion
For the reasons set forth above, the Court adopts the R&R (Dkt. No. 9) as the Order of the
Court and denies and dismisses Petitioner’s petition for habeas relief without prejudice and without
requiring Respondent to file a return.
AND IT IS SO ORDERED.

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s/ Richard M. Gergel
Richard M. Gergel
United States District Judge
February 6, 2024
Charleston, South Carolina

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