SIMMONS V. JOHNSON
Filing
21
MEMORANDUM OPINION AND ORDER: The court adopts the findings contained in the 20 PF&R as to Scotty Tyrone Simmons; GRANTS Petitioner's 17 Motion to Withdraw Petition; GRANTS Petitioner's 19 MOTION to Withdraw his Petition under 28 U. S.C. Section 2241 to the extent that he seeks recharacterization of his Section 2241 Petition and the proposed Section 2255 motion; TRANSFERS this action, including the Section 2241 Petition and the proposed Section 2255 motion, to the United States District Court for the Middle District of North Carolina, pursuant to 28 U.S.C. Section 1631; and directs the Clerk to dismiss this case from the Court's active docket. Signed by Senior Judge David A. Faber on 4/27/2016. (cc: Petitioner, pro se; attys) (mk) [Transferred from West Virginia Southern on 4/27/2016.]
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
SCOTTY TYRONE SIMMONS,
Plaintiff,
v.
CIVIL ACTION NO. 1:15-14315
B.J. JOHNSON, Warden,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Cheryl A. Eifert for submission of
findings and recommendations regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).
Magistrate Judge Eifert submitted to the
court her Findings and Recommendation on April 1, 2016, in which
she recommended that the district court grant plaintiff’s motion
to withdraw his petition under 28 U.S.C. § 2241 for a writ of
habeas corpus, (Doc. No. 17); grant plaintiff’s motion to
withdraw his petition under 28 U.S.C. § 2241 for a writ of habeas
corpus to the extent that he seeks recharacterization of his §
2241 petition and the proposed § 2255 motion, (Doc. No. 19);
transfer this action, including the § 2241 petition and the
proposed § 2255 motion, to the United States District Court for
the Middle District of North Carolina, pursuant to 28 U.S.C. §
1631; and remove this matter from the court’s docket.
In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days, plus three mailing days,
in which to file any objections to Magistrate Judge Eifert’s
Findings and Recommendation.
The failure of any party to file
such objections constitutes a waiver of such party's right to a
de novo review by this court.
Snyder v. Ridenour, 889 F.2d 1363
(4th Cir. 1989).
The parties failed to file any objections to the
Magistrate Judge's Findings and Recommendation within the
seventeen-day period.
Having reviewed the Findings and
Recommendation filed by Magistrate Judge Eifert, the court adopts
the findings and recommendations contained therein.
Accordingly,
the court hereby GRANTS plaintiff’s motion to withdraw his
petition under 28 U.S.C. § 2241 for a writ of habeas corpus,
(Doc. No. 17); GRANTS plaintiff’s motion to withdraw his petition
under 28 U.S.C. § 2241 for a writ of habeas corpus to the extent
that he seeks recharacterization of his § 2241 petition and the
proposed § 2255 motion, (Doc. No. 19); TRANSFERS this action,
including the § 2241 petition and the proposed § 2255 motion, to
the United States District Court for the Middle District of North
Carolina, pursuant to 28 U.S.C. § 1631; and directs the Clerk to
dismiss this case from the court’s active docket.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to plaintiff, pro se, and counsel of record.
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IT IS SO ORDERED this 27th day of April, 2016.
ENTER:
David A. Faber
Senior United States District Judge
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