Van Hoorelbeke v. United States of America et al, No. 0:2008cv03869 - Document 50 (D.S.C. 2010)
Court Description: OPINION AND ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 45 Report and Recommendations, granting 34 Motion for Summary Judgment filed by United States of America and dismissing petition with prejudice. Signed by Honorable Cameron McGowan Currie on 1/8/2010. (jpet, )
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION Gerald J. Van Hoorelbeke, ) ) Petitioner, ) ) v. ) ) United States of America; Warden of ) FCI Edgefield, ) ) Respondents. ) ___________________________________ ) C/A NO. 0:08-3869-CMC-PJG OPINION and ORDER This matter is before the court on Plaintiff s pro se petition for writ of habeas corpus, filed in this court 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), DSC, this matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings and a Report and Recommendation ( Report ). On December 15, 2009, the Magistrate Judge issued a Report recommending that the Respondents motion for summary judgment be granted and this matter dismissed with prejudice. The Magistrate Judge advised Petitioner of the procedures and requirements for filing objections to the Report and the serious consequences if he failed to do so. Petitioner filed objections to the Report on December 28, 2009. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by 1 the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). After reviewing the record of this matter, the applicable law, the Report and Recommendation of the Magistrate Judge, and Petitioner s objections, the court agrees with the conclusions of the Magistrate Judge. Accordingly, the court adopts and incorporates the Report and Recommendation by reference in this Order. Petitioner contends that he only possessed the firearm in question, Ans. and Objections at 1 (Dkt. #48, filed Dec. 28, 2009), but did not use it. This objections is without merit. Respondents motion for summary judgment is granted and this petition is dismissed with prejudice. IT IS SO ORDERED. s/ Cameron McGowan Currie CAMERON MCGOWAN CURRIE UNITED STATES DISTRICT JUDGE Columbia, South Carolina January 8, 2010 2
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