United States District Court, D. South Carolina, Florence Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
DISMISSING THE PETITION WITHOUT PREJUDICE
GEIGER LEWIS UNITED STATES DISTRICT JUDGE
action arises under 28 U.S.C. § 2241. Petitioner is
proceeding pro se. This matter is before the Court for review
of the Report and Recommendation (Report) of the United
States Magistrate Judge suggesting the Petition be dismissed
without prejudice and without requiring Respondents 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
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 Court need not conduct a de novo review,
however, “when a party makes general and conclusory
objections that do not direct the court to a specific error
in the [Magistrate Judge's] proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982); see Fed. R. Civ. P. 72(b).
Magistrate Judge filed the Report on April 19, 2018. ECF No.
14. On May 2, 2018, the Clerk of Court entered
Petitioner's objections to the Report (Petitioner's
Memorandum). ECF No. 19.
document filed pro se is ‘to be liberally
construed.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). Courts are not, however, required to
“conjure up questions never squarely presented to
them” or seek out arguments for a party. Beaudett
v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Report recommends the Court dismiss the Petition without
prejudice and without requiring Respondents to file a return
because Petitioner has failed to satisfy the savings clause
of 28 U.S.C. § 2255(e). ECF No. 14. The Magistrate Judge
notes several times in the Report Petitioner failed to
attempt to seek relief under 28 U.S.C. § 2255 (§
2255) prior to filing the Petition. In an apparent response
to the Magistrate Judge's analysis in the Report,
Petitioner states in his Memorandum he has now filed a §
2255 motion. Petitioner further argues his conviction was
erroneous, and he implores the Court to grant his § 2255
motion. Petitioner asks the Court to wait to rule on his
Petition until his §2255 motion has been addressed, and
he requests all documents to which he is entitled.
when construed liberally and in the light most favorable to
Petitioner, Petitioner's Memorandum fails to set forth
any specific objections to the Report. Any meaningful counter
to the well-reasoned conclusions in the Report is absent. The
fact Petitioner filed a § 2255 motion after the
Magistrate Judge issued the Report fails to negate the
Magistrate Judge's analysis, for it is still true
Petitioner had neglected to seek relief under § 2255 at
the time he filed the Petition. The Court has reviewed the
entire record out of an overabundance of caution, and it
agrees with the well-reasoned conclusion of the Magistrate
Judge that the Petition should be dismissed without
prejudice. Because the Court holds the Petition should be
dismissed, it declines to stay this case until resolution of
Petitioner's § 2255 motion.
to the extent Petitioner requests free copies of documents in
his Memorandum, Petitioner's request is denied. Because
the Court holds the Petition should be dismissed without
prejudice for the reasons set forth in the Report, no
documents are needed to decide an issue in this matter, and
Petitioner is not entitled to free copies of documents.
See Jones v. Superintendent, Va. State Farm, 460
F.2d 150, 153 (4th Cir. 1972) (explaining “the state
may constitutionally decline to furnish an indigent with a
transcript until a need for it is shown”). If
Petitioner wishes to receive copies of any documents, he may
request them from the Clerk of Court at his own expense.
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 the Petition is DISMISSED
WITHOUT PREJUDICE and without requiring Respondents
to file a return. The Court notes Petitioner is free to
refile a petition seeking habeas relief under 28 U.S.C.
§ 2241 at an appropriate time if he wishes to do so.
IT IS SO ORDERED.
OF RIGHT TO APPEAL
parties are hereby notified of the right to appeal this Order
within sixty days from the date hereof, pursuant to Rules 3