Tyler v. South Carolina, State of

Filing 11

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant. It is the judgment of the Court Plaintiffs petition for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE and without requiring Respondent to file a return. Certificate of appealability is denied. Signed by Honorable Mary Geiger Lewis on 4/24/2017.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
LARRY JAMES TYLER,
Petitioner,
vs.
DIRECTOR OF THE DARLINGTON
COUNTY DETENTION CENTER,
Respondent.

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§ CIVIL ACTION NO. 9:16-3945-MGL-BM
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ORDER ADOPTING THE REPORT AND RECOMMENDATION AND DISMISSING
PETITIONER’S PETITION FOR A WRIT OF HABEAS CORPUS WITHOUT
PREJUDICE AND WITHOUT REQUIRING RESPONDENT TO FILE A RETURN
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 Petitioner’s petition for a writ of habeas corpus be dismissed without
prejudice and without requiring Respondent to file a return. 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 March 30, 2017, but Petitioner failed to file any
objections to the Report. “[I]n 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.3d310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note). 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 Plaintiff’s petition for a writ of habeas corpus is DISMISSED WITHOUT
PREJUDICE and without requiring Respondent to file a return.
To the extent that Petitioner requests a certificate of appealability from this Court, that
certificate is DENIED.
IT IS SO ORDERED.
Signed this 24th day of April, 2017, in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE

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NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this Order within 30 days from the date
hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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