Desir v. Padula

Filing 21

ORDER ADOPTING 18 Report and Recommendations; GRANTING 9 Motion for Summary Judgment filed by Anthony Padula; The Habeas Petition is DISMISSED with prejudice. To the extent that Petitioner requests a certificate of appealability from this Court, that certificate is DENIED.Signed by Honorable Henry F Floyd on 10/20/2010. (mbro, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION JUDEX DESIR, Petitioner, vs. WARDEN ANTHONY PADULA, Respondent. § § § § § § §

CIVIL ACTION NO. 8:10-488-HFF-BHH

ORDER This case was filed as a 28 U.S.C. § 2254 action. Petitioner is proceeding pro se. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that Respondent's Motion for Summary Judgment (Dkt. # 9) be granted and the Habeas Petition be dismissed with prejudice. The Report was made in accordance with 28 U.S.C. § 636 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 the Court. Mathews v. Weber, 423 U.S. 261, 270 (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). The Magistrate Judge filed the Report on September 28, 2010, but Petitioner failed to file any objections to the Report. In the absence of such objections, the Court is not required to give

any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985). After a thorough review of the Report and the record in this case pursuant to the standard set forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the judgment of the Court that Respondent's Motion for Summary Judgment (Dkt. # 9) is GRANTED and the Habeas Petition is DISMISSED with prejudice. To the extent that Petitioner requests a certificate of appealability from this Court, that certificate is DENIED. IT IS SO ORDERED. Signed this 20th day of October, 2010, in Spartanburg, South Carolina.

s/ Henry F. Floyd HENRY F. FLOYD UNITED STATES DISTRICT JUDGE ***** NOTICE OF RIGHT TO APPEAL The parties are hereby notified of the right to appeal this Order within thirty days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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