McCoy v. Marto et al

Filing 10

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the R & R of the Magistrate Judge (Dkt. No. 8) as the order of Court. This action is dismissed without prejudice, without leave to amend, and without requiring the Respondent to file a return. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 3/5/2025. (ltap, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Damiane Antron McCoy,
v.

Case No. 9:24-cv-4956-RMG

Petitioner,
ORDER

Warden of Perry Correctional Institution,
Respondent.

Before the Court is the Report and Recommendation (“R & R”) of the Magistrate Judge
recommending that Defendant’s petition for habeas corpus be summarily dismissed without
prejudice, without leave to amend, and without requiring Respondent to file a return. (Dkt. No. 8).
Petitioner was advised that he had fourteen days to file written objections and if he failed to timely
file objections, the R & R would be reviewed only clear error and Petitioner would waive his right
to file an appeal from the District Court’s order. (Id. at 7). Petitioner filed no objections.
Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a
de novo determination only of those portions of the Report to which specific objections are made,
and the Court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C.
§ 636(b)(1). In the absence of specific objections, the Court reviews the Report for clear error. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in
the absence of a timely filed objection, a district court need not conduct a de novo review, but
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instead must ‘only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.’”) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Discussion
The Magistrate Judge recommended that the petition be summarily dismissed because
Petitioner failed to state a cognizable ground for relief and failed to exhaust his state remedies.
(Dkt. No. 8 at 3-5). Petitioner filed no objections. The Court finds that the Magistrate Judge
ably addressed the factual and legal issues in this matter and correctly concluded that the petition
should be dismissed. The Court adopts the R & R of the Magistrate Judge (Dkt. No. 8) as the
order of Court. This action is dismissed without prejudice, without leave to amend, and without
requiring the Respondent to file a return.
AND IT IS SO ORDERED.

_s/ Richard M. Gergel_
Richard Mark Gergel
United States District Judge
March 5, 2025
Charleston, South Carolina

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