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Irby v. Cartledge

United States District Court, D. South Carolina, Beaufort Division

June 29, 2015

ANTROWN APPLESRICIO IRBY, Petitioner,
v.
WARDEN LEROY CARTLEDGE, Respondent.

ORDER ADOPTING THE REPORT AND RECOMMENDATION AND SUMMARILY DISMISSING THE COMPLAINT WITHOUT PREJUDICE

MARY G. LEWIS, District Judge.

This case was filed as a 28 U.S.C. 2254 action. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that the Petition for a Writ of Habeas Corpus be summarily 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 January 15, 2015, but Petitioner failed to file any objections. "[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.3d 310, 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 to the extent that it does not contradict this Order, * and incorporates it herein. Therefore, it is the judgment of this Court that the Petition be summarily DISMISSED WITHOUT PREJUDICE and without requiring Respondent to file a return.

IT IS SO ORDERED.


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