Rose v. Cartledge

Filing 15

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts and incorporates the Report and Recommendation (ECF No. 10 ) by reference into this order, and grants Petitioner's Motion to Dismiss (ECF No. 14 ). It is therefore ORDERED that this action is DISMISSED without prejudice. IT IS SO ORDERED. Signed by Honorable Bruce Howe Hendricks on 3/24/2017. (mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Civil Action No.: 5:17-153-BHH
Alan Duane Rose,
Petitioner,
vs.

Opinion and Order

Warden Larry Cartledge,
Respondent.

This matter is before the Court upon the Magistrate Judge’s Report and
Recommendation (“Report”) (ECF No. 10), which recommends that the § 2254 petition
be dismissed without prejudice. For the reasons set forth below, the Court agrees with
the Report and dismisses the petition without prejudice.
BACKGROUND
Petitioner, Alan Duane Rose, a state prisoner confined at Broad River
Correctional Institution, who is proceeding pro se, brought this action pursuant to 28
U.S.C. § 2254 requesting remand back to South Carolina Court of Appeals for direct
appeal. (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 Kaymani D. West. On February
28, 2017, the Magistrate Judge issued a Report recommending that the § 2254 petition
be dismissed without prejudice. Petitioner has filed no objections, but filed a motion to
dismiss (ECF No. 14) on March 20, 2017, asking this Court to dismiss this case, but
“continue with the writ of habeas corpus on case number: 5:16-cv-03394-BHH-KDW.”

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
(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). 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. 10) by reference into this
order, and grants Petitioner’s Motion to Dismiss (ECF No. 14). It is therefore
ORDERED that this action is DISMISSED without prejudice.

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IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
United States District Judge
March 24, 2017
Greenville, South Carolina

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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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