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Thompson v. Warden Perry Correctional Institution

United States District Court, D. South Carolina
Sep 4, 2007
C/A No. 3:06-3429 DCN JRM (D.S.C. Sep. 4, 2007)

Summary

finding § 2254 petition untimely despite state court jurisdictional argument

Summary of this case from DEW v. PANCAKE

Opinion

C/A No. 3:06-3429 DCN JRM.

September 4, 2007


ORDER


The above referenced case is before this court upon the magistrate judge's recommendation that the respondent's motion for summary judgment be granted and the petition dismissed without an evidentiary hearing.

This court is charged with conducting a de novo review of any portion of the magistrate judge's report to which a specific objection is registered, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). However, absent prompt objection by a dissatisfied party, it appears that Congress did not intend for the district court to review the factual and legal conclusions of the magistrate judge. Thomas v Arn, 474 U.S. 140 (1985). Additionally, any party who fails to file timely, written objections to the magistrate judge's report pursuant to 28 U.S.C. § 636(b)(1) waives the right to raise those objections at the appellate court level. United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984). Objections to the magistrate judge's report and recommendation were filed on August 24, 2007.

In Wright v. Collins, 766 F.2d 841 (4th Cir. 1985), the court held "that a pro se litigant must receive fair notification of the consequences of failure to object to a magistrate judge's report before such a procedural default will result in waiver of the right to appeal. The notice must be `sufficiently understandable to one in appellant's circumstances fairly to appraise him of what is required.'" Id. at 846. Plaintiff was advised in a clear manner that his objections had to be filed within ten (10) days, and he received notice of the consequences at the appellate level of his failure to object to the magistrate judge's report.

A de novo review of the record indicates that the magistrate judge's report accurately summarizes this case and the applicable law. Accordingly, the magistrate judge's report and recommendation is affirmed, the respondent's motion for summary judgment is granted, and the petition is dismissed without an evidentiary hearing.

AND IT IS SO ORDERED.

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


Summaries of

Thompson v. Warden Perry Correctional Institution

United States District Court, D. South Carolina
Sep 4, 2007
C/A No. 3:06-3429 DCN JRM (D.S.C. Sep. 4, 2007)

finding § 2254 petition untimely despite state court jurisdictional argument

Summary of this case from DEW v. PANCAKE

noting that the ability of a petitioner to challenge a state court's subject matter jurisdiction "at any time" should "actually be phrased 'at any time he is in state court'"

Summary of this case from Moore v. Warden of Allendale Corr. Inst.
Case details for

Thompson v. Warden Perry Correctional Institution

Case Details

Full title:John Reed Thompson, #301945, Petitioner, v. Warden Perry Correctional…

Court:United States District Court, D. South Carolina

Date published: Sep 4, 2007

Citations

C/A No. 3:06-3429 DCN JRM (D.S.C. Sep. 4, 2007)

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