CIVIL ACTION NO. 5:21-CV-14
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge James P. Mazzone [Doc. 6]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Mazzone for submission of a proposed report and recommendation ("R&R"). Magistrate Judge Mazzone filed his R&R on February 2, 2021, wherein he recommends that petitioner's Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. 1] be denied and dismissed without prejudice to the petitioner's right to file a civil rights action.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn , 474 U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour , 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce , 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Mazzone's R&R were due within fourteen (14) days of service, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). To date, no objections have been filed. Accordingly, this Court will review the R&R for clear error.
Also pending before this Court is petitioner's Motion for Voluntarily Dismissal and Motion to Strike and Seal [Doc. 9], filed February 11, 2021. Therein, petitioner moves to voluntarily dismiss the petition. Further, he asks that the name David Gambino, included in the R&R as an apparent typographical error, be struck and that the case be sealed. The Court has reviewed the R&R and the Motion and finds no reason to seal the case or to allow voluntary dismissal after an R&R has been submitted. Accordingly, the Motion [Doc. 9] is DENIED. Insofar as the motion raises an objection to the typo in the R&R, that objection is overruled, as the Court finds that the error did not impact the magistrate judge's reasoning in the R&R.
Upon careful review of the above, it is the opinion of this Court that the Report and Recommendation [Doc. 6] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge's report. Accordingly, petitioner's Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. 1] is hereby DENIED and DISMISSED WITHOUT PREJUDICE as to petitioner's right to file a civil rights action. Further, the Motion for Leave to Proceed in forma pauperis [Doc. 2] is hereby DENIED and the fee waived. This Court further ORDERS that this matter be STRICKEN from the active docket of this Court and DIRECTS the Clerk to enter judgment in favor of respondent.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record herein and to mail a copy to the pro se petitioner.
DATED: February 23, 2021.
JOHN PRESTON BAILEY
UNITED STATES DISTRICT JUDGE