Adley v. Owen

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS 10 : It is ORDERED that Petitioner's Petition for Writ of Habeas Corpus is hereby dismissed without prejudice. Signed by Honorable J Michelle Childs on 10/08/2010. (ncha, )

Adley v. Owen

Doc. 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION ) ) Petitioner, ) ) v. ) ) John R. Owen, Warden, ) ) Respondent. ) ____________________________________) Cornell W. Adley,

C.A. No. 8:10-CV-02391-JMC

ORDER

The pro se prisoner brings this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 to challenge his sentence enhancement as a career offender. The Magistrate Judge's Report and Recommendation [Entry #10], filed on September 16, 2010, recommends Petitioner's petition be dismissed without prejudice because the claims raised in this action are not proper grounds for a habeas petition filed pursuant to § 2241. The Report and Recommendation sets forth in detail the relevant facts and legal standards on this matter, and the court incorporates the Magistrate Judge's recommendation without a recitation. The Magistrate Judge's Report and Recommendation is 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 objections are made, and the court

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may accept, reject, or modify, in whole or in part, the Magistrate Judge's recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1). Plaintiff was advised of his right to file objections to the Report and Recommendation [Report, at 8]. However, Plaintiff filed no objections to the Report and Recommendation. In the absence of objections to the Magistrate Judge's Report and Recommendation, this court is not required to provide an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, "in the absence of a timely filed objection, a district court need not conduct a 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.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note). Furthermore, failure to file specific written objections to the Report and Recommendation results in a party's waiver of the right to appeal from the judgment of the district court based upon such recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). After a thorough review of the Report and Recommendation and the record in this case, the court adopts the Magistrate Judge's Report and Recommendation and incorporates it herein. It is therefore ORDERED that Petitioner's Petition for Writ of Habeas Corpus is hereby dismissed without prejudice. IT IS SO ORDERED.

s/ J. Michelle Childs United States District Judge 2

Greenville, South Carolina October 8, 2010

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