Clarke v. USA

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. NO. 7 ). The Court adopts the Magistrate Judge's 7 Report and Recommendation in its entirety and dismisses the Petitioner's 2 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Brian A. Clarke, with prejudice, and orders this matter stricken from the Court's active docket. The Clerk is directed to enter a separate judgment in this matter. Signed by District Judge Irene M. Keeley on 10/15/15. (Copy PS Petitioner via cert. mail)(mh)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA BRIAN A. CLARKE, Petitioner, v. // CIVIL ACTION NO. 1:15CV33 CRIMINAL ACTION NO. 1:13CR2 (Judge Keeley) UNITED STATES OF AMERICA, Respondent. ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 7] On March 4, 2015, the pro se petitioner, Brian A. Clarke (“Clarke”), filed a motion to vacate pursuant to 28 U.S.C. §§ 2255, which the Court referred to United States Magistrate Judge Robert W. Trumble for initial screening and a Report and Recommendation (“R&R”) in accordance with LR PL P 2. On July 28, 2015, Magistrate Judge Trumble issued a R&R, in which he recommended that the Court dismiss Clarke’s petition as untimely (Dkt. No. 7 at 5). Clarke, whose conviction became final on August 30, 2013, failed to file his § 2255 motion until March 4, 2015, over seven months after the one-year statute of limitations had expired. Id. The R&R also specifically warned Clarke that his failure to object to the recommendation would result in the waiver of any appellate rights he might otherwise have on this issue. 6. 1 The parties did not file any objections.1 Id. at 5- Consequently, The failure to object to the Report and Recommendation not only waives the appellate rights in this matter, but also relieves the CLARKE V. UNITED STATES 1:15CV33 1:13CR2 ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 7] finding no clear error, the Court ADOPTS the Report and Recommendation in its entirety (Dkt. No. 7), DENIES the motion to vacate (Dkt. No. 1), and ORDERS that this case be DISMISSED WITH PREJUDICE and stricken from the Court’s active docket. It is so ORDERED. Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of Court to enter a separate judgment order and to transmit copies of both orders to counsel of record and to the pro se petitioner, certified mail, return receipt requested. Dated: October 15, 2015. /s/ Irene M. Keeley IRENE M. KEELEY UNITED STATES DISTRICT JUDGE Court of any obligation to conduct a de novo review of the issue presented. See Thomas v. Arn, 474 U.S. 140, 148-153 (1985); Wells v. Shriners Hosp., 109 F.3d 198, 199-200 (4th Cir. 1997). 2

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