Dewitt v. Cruz

Filing 20

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; denying 19 Motion To Supplement Pleading. Petitioners Petition for a Writ of Habeas Corpus, (Doc. # 1), is DISMISSED without prejudice and without requiring the respondent to file a return. Signed by Chief Judge Terry L Wooten on 5/19/2014.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Irby Gene Dewitt,

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Petitioner,
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vs.
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Warden Cruz,
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Respondent.
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___________________________________ )

C/A No.: 9:13-cv-02064-TLW

ORDER
On July 29, 2013, Irby Gene Dewitt (“Petitioner”) filed a §2241 Petition for a Writ of
Habeas Corpus. (Doc. # 1). The matter now comes before this on Petitioner’s Motion to
Supplement his § 2241 petition, (Doc. #19), and for review of the Report and Recommendation
(“Report”) filed by Magistrate Judge Bristow Marchant, (Doc. #15), to whom this case was
previously assigned. In the Report, the Magistrate Judge recommends that Petitioner’s Petition
for a Writ of Habeas Corpus be dismissed without prejudice and without requiring the
respondents to file a return. (Doc. # 15). Objections were due by January 3, 2014. Petitioner has
filed no objections to the Report. For the reasons described below, the Court denies the motion to
supplement and accepts the Magistrate Judge’s Report.
Motion to Supplement
Regarding the Petitioner’s motion to supplement his §2241 petition, the Court finds that a
supplemental pleading would be futile. See Franks v. Ross, 313 F.3d 184, 193, 198 n.15 (noting
that a motion to amend under Rule 15 of the Federal Rules of Civil Procedure should be denied
when the amendment would be futile, and noting that the standard for Rule 15(d) motions to
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supplement is nearly identical). Specifically, in the Motion to Supplement, Petitioner states that
he wishes to add to his §2241 motion a claim that the Government did not prove that Petitioner
had foreknowledge of his codefendant’s intent to use a firearm. However, at his guilty plea, the
Petitioner specifically admitted to the Court that he knew the gun was going to be used in the
robbery. Thus, the Court finds that the motion to supplement should be denied.
Report and Recommendation
This Court is charged with conducting a de novo review of any portion of the Magistrate
Judge’s Report to which a specific objection is registered, and may accept, reject, or modify, in
whole or in part, the recommendations contained in that Report. 28 U.S.C. § 636. In the absence
of 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).
Conclusion
This Court has carefully reviewed the Motion to Supplement and the Magistrate Judge’s
Report and Recommendation. For the reasons articulated herein, Petitioner’s Motion to
Supplement, (Doc. #19), is DENIED. In addition, for the reasons articulated by the Magistrate
Judge, it is hereby ORDERED that the Magistrate Judge’s Report and Recommendation, (Doc.
# 17), is ACCEPTED, and Petitioner’s Petition for a Writ of Habeas Corpus, (Doc. # 1), is
DISMISSED without prejudice and without requiring the respondent to file a return.
IT IS SO ORDERED.
s/Terry L. Wooten
Chief United States District Judge
May 19, 2014
Columbia, South Carolina
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