Erwin v. South Carolina, State of

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS 8 , DISMISSING the petition without prejudice and without requiring the Respondent to file an answer or return. It is further ordered that a certificate of appealability is denied. Signed by Honorable R Bryan Harwell on 10/11/2011. (ncha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Ralph L. Erwin,
Petitioner,
vs.
State of South Carolina,
Respondent.

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C.A. No.: 6:11-cv-02146-RBH

ORDER

Petitioner, a state parolee proceeding pro se, brought this suit seeking relief pursuant to
28 U.S.C. § 2254. This matter is before the court for review of the Report and
Recommendation of United States Magistrate Judge Kevin F. McDonald, made in accordance
with 28 U.S.C. § 636(b)(1)(B) and Local 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
this court. See 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 and Recommendation 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.
See 28 U.S.C. § 636(b)(1).
Neither party has filed objections to the Report and Recommendation. In the absence
of objections to the Report and Recommendation of the Magistrate Judge, this court is not
required to give any explanation for adopting the recommendation. See Camby v. Davis, 718

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F.2d 198, 199 (4th Cir. 1983). The Court reviews only for clear error in the absence of an
objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005)
stating that “in the absence of a timely filed objection, a district court need not conduct 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.'” (quoting Fed. R. Civ. P. 72 advisory committee's
note).
After a thorough review of the record in this case, the Court finds no clear error.
Accordingly, the Report and Recommendation of the Magistrate Judge is adopted and
incorporated by reference. Therefore, it is
ORDERED that the § 2254 petition is dismissed without prejudice and without requiring
Respondent to file an Answer or return.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED because the
Petitioner has failed to make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
IT IS SO ORDERED.

s/R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
October 11, 2011

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