Opinion
Civil Action 1:19-CV-135
09-28-2021
CLARKE D PATTERSON, Petitioner, v. RUSSELL MASTON, Superintendent of SMCC, Respondent.
ORDER ADOPTING REPORTS AND RECOMMENDATIONS
THOMAS S. KLEEH, UNITED STATES DISTRICT JUDGE
The above referenced case is before this Court upon the magistrate judge's Reports and Recommendations docketed respectively. See [Docs. 44 & 45]. Therein, the magistrate judge recommends that Respondent's Motion to Dismiss or For Summary Judgment [Doc. 32] be denied, petitioner's unopposed construed motion to stay [Doc. 37] be granted, that the petition be construed as a mixed petition, and that the Clerk place this matter on the inactive docket of the Court pending resolution of petitioner's claims to be raised in state court. See [Doc. 44 a 42]. Furthermore, the magistrate judge recommends that petitioner's Motion for Appointment of Counsel [Doc. 39] be denied, and petitioner's Motion to File Only One Copy [Doc. 40] be granted.
The magistrate judge's second report and recommendation recommends that petitioner's Petition for a Writ of Mandamus [Doc. 43] be denied as being legally frivolous and failing to state a claim upon which relief can be granted and that petitioner's attached Motion for Leave to Proceed In Forma Pauperis be denied as moot. See [Doc. 45].
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). No objections have been filed to the magistrate judge's reports and recommendations.
A de novo review of the record indicates that the magistrate judge's reports accurately summarize this case and the applicable law. Accordingly, the magistrate judge's reports and recommendations [Docs. 44 & 45] are AFFIRMED. This Court holds the following:
• Respondent's Motion to Dismiss or For Summary Judgment [Doc. 32] is DENIED.
• Petitioner's unopposed construed motion to stay [Doc. 37] is GRANTED.
• The petition is hereby CONSTRUED as a mixed petition.
• Petitioner's Motion for Appointment of Counsel [Doc. 39] is DENIED.
• Petitioner's Motion to File Only One Copy [Doc. 40] is GRANTED.
• Petitioner's Petition for a Writ of Mandamus [Doc. 43] is DENIED and his attached Motion for Leave to Proceed In Forma Pauperis is DENIED AS MOOT.
• Petitioner is hereby DIRECTED to file (1) quarterly reports regarding the status of his state habeas and appeals on the unexhausted claims he intends to pursue in his federal § 2254 petition; and (2) a Notice of Exhaustion within thirty (30) days from the date his state court remedies have been fully exhausted. Petitioner must move for reinstatement of this action to the active docket of this Court within thirty (30) days from the date his state court remedies have been exhausted. Petitioner is hereby ADVISED that failure to do so could result in dismissal of his present petition.
This Court further DIRECTS the Clerk STAY this case pending resolution of petitioner's claims to be raised in state court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and to mail a copy to the pro se petitioner.