Terry v. Cartledge

Filing 34

ORDER FINDING 25 Report and Recommendations PROPER; DENYING 21 Motion for Default Judgment filed by Terrence Dimingo Terry. The Clerk shall return this file to the Magistrate Judge for further proceedings. Signed by Honorable Joseph F Anderson, Jr on 11/30/2010. (mbro, ) Modified on 11/30/2010 to edit text (mbro, ).

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U N I T E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA T e rre n c e Dimingo Terry, P e t i t io n e r , vs. M r. Leroy Cartledge, Warden of McCormick C o rre c tio n a l Institution, R e sp o n d e n t. ____________________________________ ) ) ) ) ) ) ) ) ) ) C/A No. 6:10-2006-JFA-KFM ORDER T h e pro se petitioner, Terrence Dimingo Terry, brings this action pursuant to 28 U .S .C . 2254. The Magistrate Judge assigned to this action 1 has prepared a Report and R e c o m m e n d a tio n wherein he suggests that the petitioner's motion for default judgment is w ith o u t merit and should be denied. The Report sets forth in detail the relevant facts and s ta n d a r d s of law on this matter, and the court incorporates such without a recitation and w ith o u t a hearing. T h e petitioner was advised of his right to file objections to the Report and R e c o m m e n d a tio n , which was entered on the docket on November 3, 2010. The petitioner f ile d a twelve-page objection to the Report. He also previously filed a seven-page response in opposition to the respondent's motion for an extension of time to answer. 1 The Magistrate Judge's review is made in accordance with 28 U.S.C. 636(b)(1)(B) and Local Civil Rule 73.02. 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 the court. Mathews v. Weber, 423 U.S. 261 (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 to the Magistrate Judge with instructions. 28 U.S.C. 636(b)(1). 1 A s the Magistrate Judge points out in his Report, the court authorized service upon th e respondent on August 13, 2010 and the return/answer was due on October 7, 2010. The re sp o n d e n t timely filed a motion for an extension of time which the Magistrate Judge g ra n te d , making the return/answer due on November 8, 2010. On November 8, 2010, after th e Report was entered, the respondent filed another motion to extend time, which was also g ra n te d . The respondent's return/answer is now due on December 8, 2010. After a careful review of the record, the applicable law, and the Report and R e c o m m e n d a tio n , and the objections thereto, the court finds the Magistrate Judge's rec o m m en d atio n proper and incorporated herein by reference. Accordingly, petitioner's m o tio n for default judgment is denied. The Clerk shall return this file to the Magistrate J u d g e for further proceedings. IT IS SO ORDERED. N o v e m b e r 30, 2010 C o lu m b ia , South Carolina J o s e p h F. Anderson, Jr. U n ite d States District Judge 2

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