Johnson v. Bodison
Filing
20
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 15 Report and Recommendations, that respondent's 10 Motion for Summary Judgment filed by McKither Bodison is Granted and this petition is dismissed as untimely filed. Signed by Honorable Cameron McGowan Currie on 3/4/09. (kmca)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA GREENWOOD DIVISION Randolph Johnson, # 215758, ) ) Petitioner, ) ) v. ) ) McKither Bodison, Warden of Lieber ) Correctional Institution, ) ) Respondent. ) ___________________________________ ) C/A NO. 8:08-3238-CMC-BHH
OPINION and ORDER
This matter is before the court on Petitioner's pro se application for writ of habeas corpus, filed in this court pursuant to 28 U.S.C. § 2254. 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 Bruce Howe Hendricks for pre-trial proceedings and a Report and Recommendation ("Report"). On February 11, 2009, the Magistrate Judge issued a Report recommending that the petition be dismissed as untimely. 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 March 3, 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
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's argument relating to the alleged failure of his appellate counsel to notify him of the conclusion of his direct appeal does not overcome the additional delay fully attributable to Petitioner's own lack of due diligence. Respondent's motion for summary judgment is granted and this petition is dismissed as untimely filed. IT IS SO ORDERED.
s/ Cameron McGowan Currie CAMERON MCGOWAN CURRIE UNITED STATES DISTRICT JUDGE Columbia, South Carolina March 4, 2009
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