Bowen v. USA

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 4 , DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO § 2255 DKT. NO. 1 , AND DISMISSING THIS CASE WITHOUT PREJUDICE as to Wright Bowen. It is so ORDERED. Court ORDERS t hat it be STRICKEN from the active docket of this Court and DIRECTS the Clerk to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 4/6/2017. (copy pro se petitioner via certified mail)(jmm) (Additional attachment(s) added on 4/6/2017: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
WRIGHT BOWEN,
Petitioner,
v.

//

CIVIL ACTION NO. 1:16CV201
CRIMINAL ACTION NO. 1:13CR55-16
(Judge Keeley)

UNITED STATES OF AMERICA,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 4], DENYING
MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO
§ 2255 [DKT. NO. 1], AND DISMISSING THIS CASE WITHOUT PREJUDICE
On October 21, 2016, the pro se petitioner, Wright Bowen
(“Bowen”), filed a motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence (“Petition”) (Dkt. No. 1). In the
Petition, Bowen argues that he is entitled to a four-level sentence
reduction based on retroactive application of amendments to United
States Sentencing Guideline § 3B1.2, which pertains to mitigating
roles (Dkt. Nos. 1 at 5; 1-1 at 1). Pursuant to 28 U.S.C. § 636 and
LR PL P 2, the Court referred the Petition to the Honorable James
E. Seibert, United States Magistrate Judge, for initial review.
On October 26, 2016, Magistrate Judge Seibert filed a Report
and Recommendation (“R&R”) recommending that the Court deny the
Petition and dismiss it without prejudice (Dkt. No. 4 at 4). He
concluded that Bowen’s Petition is “grossly untimely,” and that
Bowen

can

only

seek

the

retroactive

benefit

of

a

guideline

amendment through a motion pursuant to 18 U.S.C. § 3582. Id. at 2-

BOWEN V. USA

1:16CV201

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 4], DENYING
MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO
§ 2255 [DKT. NO. 1], AND DISMISSING THIS CASE WITHOUT PREJUDICE
3. The R&R also informed Bowen of his right to file any objections
to the recommendations within 14 days following his receipt of the
R&R. Id. at 4-5. Bowen received the R&R on October 31, 2016 (Dkt.
No. 5), but did not file objections. Rather, he filed a response
agreeing with Magistrate Judge Seibert’s analysis and acknowledging
that he must seek relief pursuant to § 3582 (Dkt. No. 6 at 1).1
When reviewing a magistrate judge’s R&R made pursuant to 28
U.S.C. § 636, the Court must review de novo only the portions of
the
§

R&R

to

which

636(b)(1)(C).

an

objection

Otherwise,

is

“the

timely

Court

may

made.

28

adopt,

U.S.C.
without

explanation, any of the magistrate judge’s recommendations to which
the prisoner does not object.” Dellacirprete v. Gutierrez, 479 F.
Supp. 2d 600, 603-04 (N.D.W. Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Indeed, failure to file specific
objections waives appellate review of both factual and legal
questions. See United States v. Schronce, 727 F.2d 91, 94 & n.4
(4th Cir. 1984). Because Bowen has not filed any objections, and
has

otherwise

agreed

with

Magistrate

Judge

Seibert’s

recommendation, the Court’s review of the R&R is for clear error.
1

In addition to this response, Bowen filed a motion pursuant
to § 3582, which the Clerk docketed in his criminal case (Crim. No.
1:13cr55-16, Dkt. No. 861).
2

BOWEN V. USA

1:16CV201

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 4], DENYING
MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO
§ 2255 [DKT. NO. 1], AND DISMISSING THIS CASE WITHOUT PREJUDICE
Upon review of the R&R and the record, the Court adopts the
opinion of the Magistrate Judge for the reasons discussed in the
R&R (Dkt. No. 4). Therefore, the Court:
1.

ADOPTS the R&R (Dkt. No. 4);

2.

DENIES the Petition (Dkt. No. 1); and

3.

DISMISSES this case WITHOUT PREJUDICE and ORDERS that it
be STRICKEN from the active docket of this Court.

It is so ORDERED.
The Court DIRECTS the Clerk to enter a separate judgment order
and to transmit copies of both orders to counsel of record and the
pro se petitioner by certified mail, return receipt requested.
DATED: April 6, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

3