Mays v. USA

Filing 22

AMENDED ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. NO. 8 ). The Court adopts the Magistrate Judge's 8 Report and Recommendation in its entirety, Denies the 14 motion to stay, Denies and Dismisses with Prejudice May's 1 2255 Pet ition and orders that this case be stricken from the Court's active docket. Further, the Court denies a certificate of appealability. The Clerk is directed to enter a separate judgment order in this matter. Signed by District Judge Irene M. Keeley on 7/28/17. (Copy PS Petitioner via cert. mail)(mh) (Additional attachment(s) added on 7/28/2017: # 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.

AMENDED ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 8]1
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).

1

This order is amended only
certificate of appealability.

for

the

purpose

of

adding

the

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.2
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.

2

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.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 and
Section 2255 Cases, the district court “must issue or deny a
certificate of appealability when it enters a final order adverse
to

the

applicant”

in

such

cases.

If

the

court

denies

the

certificate, “the parties may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of
Appellate Procedure 22.” 28 U.S.C. foll. § 2255(a). The Court finds
it inappropriate to issue a certificate of appealability in this
matter because Mays has not made a “substantial showing of the
denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). A
petitioner satisfies this standard by demonstrating that reasonable
jurists would find that any assessment of the constitutional claims
by

the

district

court

is

debatable

or

wrong,

and

that

any

dispositive procedural ruling by the district court is likewise
debatable. See Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003).
Upon review of the record, the Court concludes that Mays has failed
to

make

the

requisite

showing,

appealability.
It is so ORDERED.

3

and

DENIES

a

certificate

of

MAYS V. UNITED STATES OF AMERICA

1:16CV138

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 8]
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: July 28, 2017.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

4