David v. Bragg
Filing
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ORDER RULING ON REPORT AND RECOMMENDATION 7 . The petition is dismissed without prejudice and without requiring the Respondent to file an Answer or return. A certificate of appealability is denied. Signed by Honorable Henry M Herlong, Jr on 8/17/2015. (kric, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Dimitrious Pierre David, #58431-004,
a/k/a Corey Tyrone Shinhoster,
Petitioner,
vs.
Warden Travis Bragg, FCI-Bennettsville,
Respondent.
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C.A. No. 6:15-2109-HMH-KFM
OPINION & ORDER
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)
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 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) (2006).
Within the initial deadline for objections, the Petitioner filed no objections to the
Report and Recommendation. However, on June 29, 2015, the Petitioner filed a motion for
reconsideration in order to allow additional time to file his objections arguing that he never
received Judge McDonald’s Report and Recommendation. (Mot. Reconsider, ECF No. 15.)
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On July 28, 2015, this court granted the Petitioner’s motion to reconsider, allowing him
fourteen (14) additional days to file any objections to the Report and Recommendation. (Order
Mot. Reconsider, ECF No. 17.) However, the Petitioner has failed again to file any objections.
In the absence of objections to the magistrate judge’s Report and Recommendation,
this court is not required to give any explanation for adopting the recommendation. See
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The court 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).
After a thorough review of the Report and Recommendation and the record in this case,
the court adopts Magistrate Judge McDonald’s Report and Recommendation and incorporates
it herein. It is therefore
ORDERED that the § 2241 petition is dismissed without prejudice and without
requiring the 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/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
August 17, 2015
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NOTICE OF RIGHT TO APPEAL
The Petitioner is hereby notified that he has the right to appeal this order within sixty
(60) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate
Procedure.
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