Latham v. Williams

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. NO. 14 ). The Court adopts the Magistrate Judge's 14 Report and Recommendation, grants the Respondent's 9 Motion to Dismiss and ORDERS that this case be DISMISSED WITH PREJUDICE and str icken from the Court's active docket. The Clerk is directed to enter a separate judgment order in this matter. Signed by District Judge Irene M. Keeley on 6/20/17. (Copy to PS Petitioner via cert. mail)(mh) (Additional attachment(s) added on 6/20/2017: # 1 Certified Mail Return Receipt) (mh).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KENDRICK LATHAM
Petitioner,
v.

//

CIVIL ACTION NO. 1:16CV52
(Judge Keeley)

C. WILLIAMS,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 14]
On March 28, 2016, the pro se petitioner, Kendrick Latham
(“Latham”), filed a petition for habeas corpus pursuant to 28
U.S.C.

§§

2241,

which

the

Court

referred

to

United

States

Magistrate Judge Robert J. Trumble for initial screening and a
Report and Recommendation (“R&R”) in accordance with LR PL P 2.
Latham’s petition sought an order from the Court directing the
Bureau

of

Prisons

to

provide

the

results

of

a

Freedom

of

Information Act (“FOIA”) request to his federal public defender and
to his father (dkt. no. 1). The respondent moved to dismiss the
petition, arguing that Latham’s claim was not cognizable under §
2241 (dkt. no. 9).
On April 25, 2017, Magistrate Judge Trumble issued an R&R, in
which he recommended that the Court grant respondent’s motion and
dismiss Latham’s petition (dkt. no. 14). Specifically, the R&R
concluded that the relief sought by Latham was not properly brought
in a § 2241 petition, which may be used only to challenge the
execution of a federal sentence. Id. at 6.

LATHAM V. WILLIAMS

1:16CV52

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 14]
The R&R also specifically warned Latham that his failure to
object to the R&R within fourteen (14) days would result in the
waiver of any appellate rights he might otherwise have on this
issue.

Id. at 7.

As of May 15, 2017, twenty (20) days after

mailing the R&R to him, the Court had not received a return receipt
indicating that Latham had actually received the R&R. Consequently,
the Clerk mailed a second copy of the R&R to Latham (dkt. no. 16).
On May 19, 2017, the Court received a signed return receipt
indicating that Latham received the first mailing of the R&R on May
16, 2017, which is when the fourteen (14) day limit for objections
began to run. Thus, more than thirty-three (33) days have passed
since he received the R&R. On May 30, 2017, the Court received a
signed return receipt indicating that Latham had received the
second mailing of the R&R on May 25, 2017 (dkt. nos. 15 and 16).
Even using that date, more than fourteen (14) days have passed
since Latham received the R&R, yet he has filed no objections.1
Consequently, finding no clear error, the Court ADOPTS the
Report and Recommendation in its entirety (dkt. no. 14), GRANTS the
respondent’s motion to dismiss (dkt. no. 9), and ORDERS that this

1

The failure to object to the Report and Recommendation not only
waives the appellate rights in this matter, but also relieves the
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

LATHAM V. WILLIAMS

1:16CV52

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 14]
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
this Orders to counsel of record and to the pro se petitioner,
certified mail, return receipt requested.
Dated: June 20, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

3