United States District Court, D. South Carolina, Rock Hill Division
C. NORTON UNITED STATES DISTRICT JUDGE.
matter is before the court on Magistrate Judge Paige J.
Gossett's Order (“Order”) construing
petitioner Don Mitchell Wilborn's
(“petitioner”) motion requesting reassignment as
a request to recuse and denying the motion, ECF No. 15, and
her Report and Recommendation (“R&R”) that
recommends this court deny petitioner's writ of habeas
corpus petition pursuant to 28 U.S.C. § 2241, ECF No.
27. For the reasons set forth below, the court affirms the
Order, adopts the R&R, and denies the petition.
pleaded guilty to conspiracy to possess with intent to
distribute methamphetamine in the United States District
Court for the Northern District of Alabama. ECF No. 10-1 at
2. He was sentenced under 21 U.S.C. § 841(b)(1)(A) to
240 months' imprisonment and sixty months' supervised
release. Id. at 3. Petitioner's sentence was
calculated using, in part, drug quantities from dismissed
R&R recounts the procedural background of
petitioner's case. ECF No. 15 at 1-1. Petitioner's
only objection to this portion of the R&R relates to its
conclusion about the other petitioner, Wendel Robert Wardell,
Jr. (“Wardell”),  with whom petitioner filed his
objections. ECF No. 27 at 5.
now seeks to have his sentence vacated pursuant to 28 U.S.C.
§ 2241. Petitioner filed his habeas petition on June 7,
2018 and then filed an amended petition on July 25, 2018.
Then petitioner filed a motion for random re-assignment of
his case on July 30, 2018, and the magistrate judge construed
the motion as a request to recuse and denied it on August 3,
2018. On the same day, the magistrate judge issued her
R&R recommending that petitioner's habeas petition be
dismissed. The court granted petitioner's request for an
extension of time to file objections to the R&R on August
28, 2018. Petitioner filed his objections as joint objections
with Wardell on September 13, 2018. No. response has been
STANDARDS OF REVIEW
Review of Magistrate's Order
judges have “the authority to hear and determine any
pretrial matter pending before the court” except for
dispositive motions. United States v. Benton, 523
F.3d 424, 430 (4th Cir. 2008). A party may object to a
magistrate judge's order on a nondispositive matter
within 14 days of service of the order. Fed. R. Civ. Pro.
72(a). The district court reviews such orders for clear
error. 28 U.S.C. § 636(b)(1)(A); Springs v. Ally
Fin. Inc., 657 Fed.Appx. 148, 152 (4th Cir. 2016).
court is charged with conducting a de novo review of
any portion of the magistrate judge's R&R to which
specific, written objections are made, and may accept,
reject, or modify, in whole or in part, the recommendations
contained in that report. 28 U.S.C. § 636(b)(1). The
magistrate judge's recommendation does not carry
presumptive weight, and it is the responsibility of this
court to make a final determination. Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). A party's
failure to object may be treated as agreement with the
conclusions of the magistrate judge. See Thomas v.
Arn, 474 U.S. 140, 150 (1985).
Pro Se Plaintiff
is proceeding pro se in this case. Federal district courts
are charged with liberally construing complaints filed by pro
se litigants to allow the development of a potentially
meritorious case. See Hughes v. Rowe, 449 U.S. 5,
9-10 (1980). Pro se complaints are therefore held to a less
stringent standard than those drafted by attorneys.
Id. Liberal construction, however, does not mean
that the court can ignore a clear failure in the pleading to
allege facts that set forth a cognizable claim. See
Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91
(4th Cir. 1990).
raises several objections to the Order and the R&R. With
regard to the Order, petitioner objects to the magistrate
judge's construction of his motion for random
reassignment as a request to recuse. He alleges that the
magistrate judge “mishandle[ed] . . . the motion for
reassignment in direct violation of the local rules and/or
Federal Rules of Civil Procedure.” ECF No. 27 at 2.
With regard to the R&R, petitioner first objects to the
magistrate judge's failure to provide copies of the
unpublished cases cited in her R&R. Id. Next
petitioner objects to the R&R's conclusion that his
petition should be summarily dismissed based on (1) its
analysis of Nelson v. Colorado, 137 S.Ct. 1249