Petty v. Cross

Filing 45

ORDER denying Petitioner's 39 Motion to Alter Judgment, Motion to Amend/Correct; adopting Magistrate Joel's 40 Report and Recommendation; granting Respondent's 22 Motion to Dismiss, Motion for Summary Judgment; Petitioner's 1 and Amended Petition are denied. This action is dismissed with prejudice and stricken from the docket. Notice of appeal must be received within 30 days, along with $455.00, or seek leave to appeal in forma pauperis. Signed by Senior Judge Robert E. Maxwell on 4/6/2010. (Attachments: # 1 Certified Mail Receipt label)(copy Petitioner [7009 2250 0003 4207 7057])(cnd)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA ROBERT WILLIAM PETTY, Petitioner, v. JAMES CROSS,Warden, Respondent. ORDER It will be recalled that on February 26, 2010, Magistrate Judge David J. Joel filed his Report and Recommendation, wherein the parties were directed, in accordance with 28 U.S.C. 636(b)(1), to file with the Clerk of Court any written objections within fourteen (14) days after being served with a copy of the Report and Recommendation. Petitioner filed his objections on March 9, 2010. Upon examination of the report from the Magistrate Judge, it appears to the Court that the issues raised by the Petitioner in his Petition for Writ of Habeas Corpus, filed pursuant 2241, were thoroughly considered by Magistrate Judge Joel in his Report and Recommendation. Upon review of the Petitioner's objections, the Court finds that the P e titio n e r has not raised any issues that were not already throughly considered and a d d re s s e d by the Magistrate Judge in his Report and Recommendation. Moreover, the C o u rt, upon an independent de novo consideration of all matters now before it, is of the o p in io n that the Report and Recommendation accurately reflects the law applicable to the fa c ts and circumstances before the Court in this action. Therefore, it is Civil Action No. 2:09cv100 ORDERED that Magistrate Judge Joel's Report and Recommendation be, and the same hereby is, accepted in whole and that this civil action be disposed of in accordance with the recommendation of the Magistrate Judge. Accordingly, it is ORDERED that the Respondent's Motion to Dismiss or in the Alternative, Motion for Summary Judgment (Docket No. 22) shall be, and the same hereby is, GRANTED. It is further ORDERED that the Petitioner's 2241 habeas corpus petition and amended petition shall be, and the same hereby are, DENIED. It is further ORDERED that Petitioner's Motion to Alter Judgment (Docket No. 39) shall be, and the same hereby is, DENIED. It is further ORDERED that the above-styled action shall be DISMISSED with prejudice and STRICKEN from the docket of this Court. It is further ORDERED that the Clerk shall enter judgment for the Respondent. It is further ORDERED that, if a party should desire to appeal the decision of this Court, written notice of appeal must be received by the Clerk of this Court within thirty (30) days from the date of the entry of the Judgment Order, pursuant to Rule 4 of the Federal Rules of Appellate Procedure. The $5.00 filing fee for the notice of appeal and the $450.00 docketing fee should also be submitted with the notice of appeal. In the alternative, at the time the notice of appeal is submitted, Petitioner may, in accordance with the provisions of Rule 24(a) of the Federal Rules of Appellate Procedure, seek leave to proceed in forma pauperis from the United States Court of Appeals for the Fourth Circuit. ENTER: April 6 , 2010 /s/ Robert E. Maxwell United States District Judge

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