Asar v. Barnes ( 2022 )

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA Difankh Asar, ) Petitioner, ) Civil Action No. 6:22-3605-BHH ) v. ) ) Nanette Barnes, ) ORDER ) Respondent. ) _________________________________ ) Difankh Asar (“Petitioner”) filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the matter was referred to a United States Magistrate Judge for initial review. On October 21, 2022, Magistrate Judge Kevin F. McDonald, filed a Report and Recommendation (“Report”) outlining the issues and recommending that the Court dismiss the petition without prejudice and without requiring Respondent Nanette Barnes (“Respondent”) to file a return. Attached to the Report was a notice advising Petitioner of the right to file written objections to the Report within fourteen days of being served with a copy. (ECF No. 8 at 12.) Pursuant to his request, Petitioner was granted an extension of time in which to file objections. (ECF Nos. 11, 13.) Petitioner filed no objections and the time for doing so expired on December 5, 2022. (ECF No. 13.) The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (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 matter only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Here, because no objections were filed, the Court has reviewed the record, the applicable law, and the findings and recommendations of the Magistrate Judge for clear error. After review, the Court finds no error and agrees with the Magistrate Judge that the instant § 2241 petition should be dismissed. Accordingly, the Court adopts and incorporates the Magistrate Judge’s Report (ECF No. 8), and dismisses the petition without prejudice, and without requiring Respondent to file a return. IT IS SO ORDERED. /s/Bruce H. Hendricks United States District Judge December 12, 2022 Charleston, South Carolina ****** NOTICE OF RIGHT TO APPEAL The parties are hereby notified that any right to appeal this Order is governed by Rules 3 and 4 of the Federal Rules of Appellate Procedure. 2