Chavez-Tovar v. Atkinson, No. 1:2012cv01310 - Document 17 (D.S.C. 2012)

Court Description: AMENDED OPINION and ORDER ADOPTING 8 REPORT AND RECOMMENDATION, dismissing this action without prejudice and without requiring respondent to file a return. Signed by Honorable Mary G Lewis on 9/6/2012. (abuc)

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA Jose Luis Chavez-Tovar, ) Civil Action No.: 1:12-1310-MGL ) Petitioner, ) ) vs. ) AMENDED ORDER AND OPINION ) Kenny Atkinson, Warden, ) FCI-Edgefield, ) ) Respondent. ) __________________________________ Petitioner Jose Luis Chavez-Tovar is an inmate at the Federal Correctional Institution in Edgefield, South Carolina. On May 18, 2012, Plaintiff proceeding pro se, filed this habeas relief action pursuant to 28 U.S.C. § 2241. (ECF No. 1). In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this matter was referred to United States Magistrate Judge Shiva V. Hodges for pretrial handling. On June 28, 2012, Magistrate Judge Hodges issued a Report and Recommendation recommending inter alia that the court dismiss Plaintiff s complaint without prejudice because Petitioner s claims are cognizable only through a direct appeal and/or under 28 U.S.C. § 2255. The Magistrate Judge makes only a recommendation to this court. recommendation has no presumptive weight. The The responsibility to make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1). The court may also receive further evidence or recommit the matter to the Magistrate Judge with instructions. Id. The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objections are made. On June 28, 2012, Petitioner was advised of his right to file objections to the Report and Recommendation. (ECF No. 8 at 8). However, he has not done so. In the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). After a careful review of the record, the applicable law, and the Report and Recommendation, the court finds the Magistrate Judge s recommendation to be proper. Accordingly, the Report and Recommendation is incorporated herein by reference and this action is DISMISSED without prejudice and without requiring respondent to file a return. IT IS SO ORDERED. /s/ Mary G. Lewis United States District Judge Spartanburg, South Carolina September 6, 2012

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