Husband v. USA

Filing 17

ORDER Adopting Report and Recommendation. The Court adopts the Magistrate Judge's 11 Report and Recommendation; denies and dismisses, with prejudice, the Petitioner's 1 Motion to Vacate 2255, and further denies as moot the Petitioner& #039;s 13 Motion to Acknowledge and Consider and Order Respondent to Cause a Copy of Motion for Relief Under Section 2255 to be Served upon Petitioner. The case is ordered stricken from the active docket of this Court. It is Ordered that the Petitioner is denied a certificate of appealability. The Clerk is directed to enter judgment in favor of the Respondent. Signed by Chief Judge John Preston Bailey on 7/9/13. (Copy PS Petitioner via cert. mail)(mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
EUNICE HUSBAND,
Petitioner,
v.

CIVIL ACTION NO. 1:12-cv-96
CRIMINAL ACTION NO. 1:08-cr-16
(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 James E. Seibert. By
Local Rule, this action was referred to Magistrate Judge Seibert for submission of a
proposed report and a recommendation (“R&R”). Magistrate Judge Seibert filed his R&R
on August 1, 2012 [Crim. Doc. 152; Civ. Doc. 11]. In that filing, the magistrate judge
recommended that this Court deny the petitioner’s Motion to Vacate under 28 U.S.C.
§ 2255 [Crim. Doc. 142; Civ. Doc. 1] as untimely.
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

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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 Seibert’s R&R were due within
fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b).
The docket sheet reflects that service was accepted on August 6, 2012 [Crim. Doc. 153;
Civ. Doc. 12]. To date, no objections have been filed.
This Court acknowledges the petitioner’s additional filings, the Motion to
Acknowledge and Consider and Order Respondent to Cause a Copy of Motion for Relief
Under Section 2255 to be Served Upon Petitioner [Crim. Doc. 154; Civ. Doc. 13] and the
Request for Government’s Response Brief to Petitioner’s 28 U.S.C. § 2255 Motion [Crim.
Doc. 157; Civ. Doc. 14].

These filings request the Government’s response to the

petitioner’s Section 2255 Motion; however, the Government’s response, which addresses
the merits of the petitioner’s § 2255 petition, is of no consequence to this case. Further,
neither of the petitioner’s filings, filed after receipt of and noting the R&R, addresses the
timeliness issue that is discussed in the R&R. The petitioner was clearly aware of the need
to file any objections and the consequences of failing to do so. As such, this Court will
review the R&R for clear error.
Upon careful review of the report and recommendation, it is the opinion of this Court
that the magistrate judge’s R&R [Crim. Doc. 152; Civ. Doc. 11] should be, and is, hereby
ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s report.
Accordingly, the petitioner’s Motion to Vacate under 28 U.S.C. § 2255 [Crim. Doc. 142;
Civ. Doc. 1] is DENIED and DISMISSED WITH PREJUDICE. Further, the Motion to

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Acknowledge and Consider and Order Respondent to Cause a Copy of Motion for Relief
Under Section 2255 to be Served Upon Petitioner [Crim. Doc. 154; Civ. Doc. 13] is hereby
DENIED AS MOOT. Therefore, this case is hereby ORDERED STRICKEN from the active
docket of this Court. The Clerk is directed to enter a 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 had 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 or record and
to mail a copy to the pro se petitioner.
DATED: July 9, 2013

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