Mays v. USA
Filing
15
ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. NO. 8 ). The Court adopts the 8 Report and Recommendation in its entirety, denies the 14 Motion to Stay, denies and dismisses with prejudice, May's 1 2255 Motion. The Court orders that this case be stricken from the Court's active docket. The Clerk is directed to enter a separate judgement order in this matter. Signed by District Judge Irene M. Keeley on 5/31/17. (Copy to PS Petitioner via cert. mail)(mh) (Additional attachment(s) added on 5/31/2017: # 1 Certified Mail Return Receipt) (mh).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
GORDON MAYS, JR.,
Petitioner,
v.
CIVIL ACTION NO. 1:16CV138
CRIMINAL ACTION NO. 1:11CR96
UNITED STATES OF AMERICA,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 8]
On June 27, 2016, the pro se petitioner, Gordon Mays, Jr.
(“Mays”) filed a petition pursuant to 28 U.S.C. § 2255, relying on
Johnson v. United States, 135 S. Ct. 2551 (2015), in which the
Supreme Court of the United States held that the residual clause of
the Armed Career Criminal Act was unconstitutionally vague (dkt.
no. 1). The Court referred the petition to United States Magistrate
Judge James E. Seibert for initial screening and a Report and
Recommendation (“R&R”) in accordance with LR PL P 2.
On July 8, 2016, Magistrate Judge Seibert issued his R&R, in
which he concluded that the petition should be denied and dismissed
with prejudice because Mays was not sentenced as a career offender
or as an Armed Career Criminal and his argument relying on Johnson
therefore was without merit (dkt. no. 8).
The R&R also warned Mays that his failure to object to the
recommendation within 14 days would result in the waiver of any
appellate rights he might otherwise have on this issue. Id. at 6.
Mays did not file a timely objection. On September 15, 2016,
however, Mays filed a motion requesting an extension to file an
objection to the R&R (dkt. no. 11), which the Court granted on
September 23, 2016, establishing a new deadline of October 25, 2016
(dkt. no. 12). To date, Mays has not filed any objections to the
R&R.1
On February 6, 2017, over three months beyond the deadline to
file any objections, Mays filed a motion to stay the proceedings
pending resolution of Beckles v. United States (dkt. no. 14), which
was decided shortly thereafter on March 6, 2017. 137 S.Ct. 886
(2017). Presciently, Magistrate Judge Seibert’s R&R had already
informed Mays that, because he was not sentenced as a career
offender, any pending decision in Beckles, which related solely to
the constitutionality of the career offender guideline, would be
without merit (dkt. no. 8).
Consequently, finding no clear error, the Court ADOPTS the R&R
in its entirety (dkt. no. 8), DENIES the motion to stay (dkt. no.
14), DENIES and DISMISSES WITH PREJUDICE Mays’s petition (dkt. no.
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
MAYS V. UNITED STATES OF AMERICA
1:16CV138
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 8]
1), and ORDERS that this case be 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 order to counsel of record and to the pro se petitioner,
certified mail, return receipt requested.
Dated: May 31, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
3
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