Demos v. USA et al

Filing 12

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS 8 , dismissing the petition without prejudice and without service upon the Respondents. A certificate of appealability is denied. Signed by Honorable Henry M Herlong, Jr on 5/18/2010. (ncha, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION John Robert Demos, Jr., #287455, ) ) Petitioner, ) ) vs. ) ) The U.S.A.; The State of Washington; ) The President of the U.S.A.; The Governor ) of the State of Washington; The Washington ) State Attorney General; The Immigration & ) Naturalization Director; The Dept. of ) Homeland Security; The Superintendent ) of Stafford Creek; The U.S. Secretary of ) the Dept. of the Interior; The U.S. Asst. ) Secretary for Public Land Management; ) The Commissioner of Indian Affairs, ) ) Respondents. )

C.A. No. 8:10-892-HMH-BHH OPINION & ORDER

This matter is before the court with the Report and Recommendation of United States Magistrate Judge Bruce Howe Hendricks, made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 of the District of South Carolina.1 John Robert Demos, Jr. ("Demos") is a pro se state prisoner seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. In her Report and Recommendation, Magistrate Judge Hendricks recommends dismissing Demos' petition without prejudice and without service upon the Respondents.

The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the United States District Court. See 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 and Recommendation to which specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1) (2006). 1

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Demos filed objections to the Report and Recommendation. Objections to the Report and Recommendation must be specific. Failure to file specific objections constitutes a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the district judge. See United States v. Schronce, 727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific 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 F.2d 198, 199 (4th Cir. 1983). Upon review, the court finds that Demos' objections are non-specific, unrelated to the dispositive portions of the magistrate judge's Report and Recommendation, or merely restate his claims. Therefore, after a thorough review of the magistrate judge's Report and the record in this case, the court adopts Magistrate Judge Hendricks' Report and Recommendation. It is therefore ORDERED that Demos' petition is dismissed without prejudice and without service upon the Respondents. It is further ORDERED that a certificate of appealability is denied because Demos 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 May 18, 2010

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NOTICE OF RIGHT TO APPEAL The Petitioner is hereby notified that he has the right to appeal this order within thirty (30) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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