Barker v. Cartledge
ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the Report and Recommendation (ECF No. 33 ) and incorporates it herein. Therefore, it is the judgment of this Court Petitioner's petition is DISMISSED WITH PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b). To the extent Petitioner moves for a certificate of appealability, such request is DENIED. IT IS SO ORDERED. Signed by Honorable Mary Geiger Lewis on 10/5/2017. (mcot, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
§ CIVIL ACTION NO. 5:16-cv-03934-MGL
ORDER ADOPTING THE REPORT AND RECOMMENDATION
AND DISMISSING THE PETITION WITH PREJUDICE PURSUANT TO
FEDERAL RULE OF CIVIL PROCEDURE 41(B)
Petitioner filed this as a 28 U.S.C. § 2254 action. He 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 Petitioner’s petition be dismissed with prejudice as per Federal Rule
of Civil Procedure 41(b). 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 September 19, 2017, but Petitioner failed to file
any objections. “[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.3d 310,
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 this Court Petitioner’s petition is DISMISSED WITH PREJUDICE pursuant to Federal Rule
of Civil Procedure 41(b).
To the extent Petitioner moves for a certificate of appealability, such request is DENIED.
IT IS SO ORDERED.
Signed this 5th day of October 2017, in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE
NOTICE OF RIGHT TO APPEAL
Petitioner is hereby notified of the right to appeal this Order within thirty days from the date
hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.
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