Lee v. Thomas

Filing 22

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the Report and Recommendation 15 and incorporates it herein. Therefore, it is the judgment of the Court that the Petition for a Writ of Habeas Corpus in this case is DISMISSED WITHOUT PREJUDICE. To the extent that Petitioner requests a certificate of appealability from this Court, that certificate is DENIED. IT IS SO ORDERED. Signed by Honorable Mary Geiger Lewis on 12/18/2015. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
CALVIN ANDREW LEE,
Petitioner,
vs.
WARDEN LINDA THOMAS,
Respondent.

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§ CIVIL ACTION NO. 5:15-02966-MGL-KDW
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ORDER ADOPTING THE REPORT AND RECOMMENDATION
AND DISMISSING PETITIONER’S PETITION WITHOUT PREJUDICE
This case was filed as a 28 U.S.C. § 2241 action. Petitioner is proceeding pro se. The matter
is before the Court for review of the Report and Recommendation (Report) of the United States
Magistrate Judge suggesting that the Petition for a Writ of Habeas Corpus in this case be dismissed
without prejudice. The Report was made in accordance with 28 U.S.C. § 636 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 the Court.
Mathews v. Weber, 423 U.S. 261, 270 (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 Magistrate Judge filed the Report on November 17, 2015, but Petitioner failed to file
any objections to the Report. “[I]n 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.3d310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note). Moreover,
a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985).
After a thorough review of the Report and the record in this case pursuant to the standard set
forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment
of the Court that the Petition for a Writ of Habeas Corpus in this case is DISMISSED WITHOUT
PREJUDICE.
To the extent that Petitioner requests a certificate of appealability from this Court, that
certificate is DENIED.
IT IS SO ORDERED.
Signed this 18th day of December, 2015, in Columbia, South Carolina.

s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE

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NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this Order within sixty days from the
date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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