Opinion
1:20CV320
02-09-2021
DAVID ERNEST MALINZAK, Petitioner, v. STATE OF NORTH CAROLINA, Respondent
ORDER
This matter is before the court for review of the Memorandum Opinion and Recommendation ("Recommendation") filed on December 30, 2020, by the Magistrate Judge in accordance with 28 U.S.C. § 636(b). (Doc. 11.) In the Recommendation, the Magistrate Judge recommends that Respondent's Motion to Dismiss, (Doc. 6), be granted, that Petitioner's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, (Doc. 1), be denied, and that this action be dismissed. The Recommendation was served on the parties to this action on December 30, 2020. (Doc. 12.) Petitioner filed objections, (Doc. 13), to the Recommendation.
This court is required to "make a de novo determination of those portions of the [Magistrate Judge's] report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the [M]agistrate [J]udge. . . . [O]r recommit the matter to the [M]agistrate [J]udge with instructions." Id.
This court has appropriately reviewed the portions of the Recommendation to which the objections were made and has made a de novo determination which is in accord with the Magistrate Judge's Recommendation. This court therefore adopts the Recommendation.
IT IS THEREFORE ORDERED that the Magistrate Judge's Recommendation, (Doc. 11), is ADOPTED. IT IS FURTHER ORDERED that Respondent's Motion to Dismiss, (Doc. 6), is GRANTED, that Petitioner's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, (Doc. 1), is DENIED, and that this action is DISMISSED.
A Judgment dismissing this action will be entered contemporaneously with this Order. Finding no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction, nor a debatable procedural ruling, a certificate of appealability is not issued.
This the 9th day of February, 2021.
/s/_________
United States District Judge