Burton v. Rupert

Filing 13

ORDER RULING ON REPORT AND RECOMMENDATION: The court ADOPTS theMagistrate Judge's Report and Recommendation (ECF No. 5 ), and this case is TRANSFERRED to the United States District Court for the Eastern District of Texas. Signed by Honorable J Michelle Childs on 10/11/2016. (dsto, ) [Transferred from South Carolina on 10/12/2016.]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Bobby E. Burton, Jr.

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Petitioner,
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v.
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Warden Rupert,
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Respondent.
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____________________________________)

Civil Action No. 4:16-cv-00178-JMC

ORDER

This matter is before the court upon review of United States Magistrate Judge Thomas E.
Rogers, III. Report and Recommendation (“Report”), filed on February 19, 2016, recommending
that the case be transferred because a federal court in South Carolina cannot obtain in personam
jurisdiction over Petitioner’s custodian (ECF No. 5.) The Report sets forth the relevant facts and
legal standards which this court incorporates herein without a recitation.
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02(B)(2) for the District of South Carolina. The Magistrate Judge makes
only a recommendation to this court, which has no presumptive weight. See Mathews v. Weber,
423 U.S. 261, 270-71 (1976). The responsibility to make a final determination remains with this
court. Id. The court is charged with making a de novo determination of those portions of the
Report to which specific objections are made. Id.
The parties were advised of their right to file objections to the Report.1 (ECF No. 5.)
However, neither party filed any objections to the Report.

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  The court observes that Petitioner filed a document purporting to be an Application for a Writ

of Habeas Corpus for the Court of Criminal Appeals of Texas (ECF No. 9), which document is
not construed to be an objection. Additionally, Petitioner filed an In Forma Pauperis Motion
(ECF No. 2) and a Motion to Appoint Counsel (ECF No. 11), which the court observes are
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In the absence of objections to the Magistrate Judge’s Report, 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) (explaining that a judge may “accept, reject, or modify in whole or in part [a]
[M]agistrate [Judge’s] report,” without explanation, when no objections are filed by the
challenging party). 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).
After a thorough review of the Report, the court finds the Report provides an accurate
summary of the facts and law and does not contain any clear error. This court concurrently
adopts the Magistrates conclusion that absent jurisdiction over this case, this court cannot and
does not make a recommendation on the merits of the Petition itself. The court ADOPTS the
Magistrate Judge’s Report and Recommendation (ECF No. 5), and this case is
TRANSFERRED to the United States District Court for the Eastern District of Texas.
IT IS SO ORDERED.

United States District Judge
October 11, 2016
Columbia, South Carolina

Motions more appropriately considered by United States District Court for the Eastern District of
Texas.  
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