Sellers v. USA

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATION ORDER re 11 Report and Recommendations. DENIES and DISMISSES the petitioners § 2255 petition 1 and ORDERED STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment in favor of the respondent. Signed by Chief Judge John Preston Bailey on 5/24/2012. (Copy counsel of record via CM/ECF, petitioner via certified mail)(jmm) (Additional attachment(s) added on 5/24/2012: # 1 Certified Mail Return Receipt) (jmm).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA CLARKSBURG LARRY SELLERS, Petitioner, v. Civil Action No. 1:11-CV-183 Criminal Action No. 1:08-CR-52 (Judge Bailey) UNITED STATES OF AMERICA, Respondent. ORDER ADOPTING REPORT AND RECOMMENDATION On this day, the above-styled matter came before the Court for consideration of the Report and Recommendation of United States Magistrate Judge David J. Joel. By Local Rule, this action was referred to Magistrate Judge Joel for submission of a proposed report and a recommendation (“R & R”). Magistrate Judge Joel filed his R & R on March 8, 2012 [Crim. Doc. 243 / Civ. Doc. 11]. In the R&R, the magistrate judge recommended the § 2255 petition [Crim. Doc. 226 / Civ. Doc. 1] be denied and dismissed. 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 petitioner's 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 Joel’s R & R were due within fourteen (14) days of receipt of the R&R, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). By Order dated April 9, 2012 [Crim. Doc. 250 / Civ. Doc. 16], this Court extended the time by which to file objections to the R&R to May 18, 2012. To date, neither party has filed objections to the R & R. Accordingly, this Court will review the report and recommendation for clear error. Upon careful review of the above, it is the opinion of this Court that the Magistrate Judge’s Report and Recommendation [Crim. Doc. 243 / Civ. Doc. 11] should be, and the same is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s report. As such, this Court hereby DENIES and DISMISSES the petitioner’s § 2255 petition [Crim. Doc. 226 / Civ. Doc. 1]. Therefore, this matter is hereby ORDERED STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment in favor of the respondent. As a final matter, upon an independent review of the record, this Court hereby DENIES the petitioner a certificate of appealability, finding that he has failed to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 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. DATED: May 24, 2012.

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