Dais v. Huggins

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 8 Report and Recommendations, that the petition is denied and this action is dismissed without prejudice and without issuance and service of process. Signed by Honorable Joseph F Anderson, Jr on 11/20/08. (kmca)

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE DISTRICT OF SOUTH CAROLINA N o rm an Tyrone Dais, #99936-071, f o rm e rly SCDC #283547 ) ) ) Petitioner, ) vs. ) ) M e la n ie Huggins, Horry County Clerk of ) C o u rt, ) ) Respondent. ) ______________________________________ ) C /A No. 8:08-3629-JFA-BHH ORDER P e titio n e r Norman Dais, a federal prisoner at FCI-Bennettsville proceeding pro se, s e e k s habeas corpus relief under 28 U.S.C. 2254 by way of a petition filed October 28, 2 0 0 8 . Dais seeks to have this court direct the respondent, the Horry County Clerk of Court, to correct the court files in his state criminal case. The Magistrate Judge assigned to this action 1 has prepared a comprehensive Report a n d Recommendation wherein he recommends that the petitioner is seeking mandamus-type relief , which does not lie against a state official, and thus the case is subject to summary d is m is s a l. The Report sets forth in detail the relevant facts and standards of law on this matter, a n d the court incorporates such without a recitation. 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 M a g i s tr a te Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the r e s p o n s i b i l it y 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 t h e court may accept, reject, or modify, in whole or in part, the recommendation of the M a g i s t r a t e Judge, or recommit th e matter to the Magistrate Judge with instructions. 28 U.S.C. 636(b)(1). 1 1 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 and has done so in a one-page objection memorandum. The objection m e m o r a n d u m is little more than a statement that the petitioner objects to the disposition of th e case as recommended by the Magistrate Judge. Such objection is overruled. A s the Magistrate Judge correctly notes in his Report, a federal district court may is s u e a writ of mandamus only against an employee or official of the United States. See, e.g., F a l li n i v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986). Because the respondent is a state c o u rt official, this action has been improperly filed against her. Hence, the petitioner cannot o b tain mandamus relief in this court. A f te r carefully reviewing the applicable law, the record in this case, the Report and R e c o m m e n d a tio n , the court finds the Magistrate Judge's recommendation fairly and a c c u ra tely summarizes the facts and applies the correct principles of law. The court, th e re f o re , adopts the recommendation of the Magistrate Judge in full and incorporates this R e p o rt by specific reference. Accordingly, the petition is denied and this action is dismissed without prejudice and w ith o u t issuance and service of process. IT IS SO ORDERED. N o v em b er 20, 2008 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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