Gooden v. USA

Filing 10

ORDER adopting 7 Report and Recommendations: The magistrate judges Report and Recommendation 7 is ORDERED ADOPTED for the reasons more fully stated in the magistrate judges report. This Court hereby DISMISSES with prejudice thepetitioners Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 INSOFAR AS IT PERTAINS TO GROUNDS ONE AND TWO. Signed by Chief Judge John Preston Bailey on 4/21/14. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
ROGER GOODEN,
Petitioner,
v.

CIVIL ACTION NO. 2:13-CV-37
CRIMINAL ACTION NO. 2:11-CR-33-5
(Judge Bailey)

UNITED STATES OF AMERICA,
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of the
Report and Recommendation of United States Magistrate Judge James E. Seibert. By
Local Rule, this action was referred to Magistrate Judge Seibert for submission of a
proposed report and a recommendation (“R&R”). Magistrate Judge Seibert filed his R&R
on March 12, 2014 [Civ. Doc. 7; Crim. Doc. 394].
The petitioner’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255 raises three grounds: 1) that the petitioner’s sentence was enhanced based
on facts that he did not plead guilty to, and the enhancement was a result of judicial
fact-finding; 2) ineffective assistance of counsel before and during sentencing because
counsel failed to object to 3-level guideline enhancement, despite the petitioner’s requests
that counsel object; and 3) ineffective assistance of counsel because counsel failed to file
an appeal on the petitioner’s behalf despite the petitioner’s request for appeal.
In his R&R, the magistrate judge recommended that this Court dismiss with
prejudice the petitioner’s Motion insofar as it pertains to grounds 1 and 2. As to whether

counsel ignored petitioner’s request that counsel file an appeal on the petitioner’s behalf,
the magistrate judge set an evidentiary hearing at 2:00 p.m., on May 22, 2014 [Civ. Doc.
7 at 18].
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo
review and the right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984). Here, objections to Magistrate Judge Seibert’s R&R were due within
fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b).
The docket sheet reflects that service was accepted on March 31, 2014 [Doc. 9]. To date,
no objections have been filed.
Upon careful review of the report and recommendation, it is the opinion of this Court
that the magistrate judge’s Report and Recommendation [Civ. Doc. 7; Crim. Doc. 394]
should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the
magistrate judge’s report. As such, this Court hereby DISMISSES with prejudice the
petitioner’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255
INSOFAR AS IT PERTAINS TO GROUNDS ONE AND TWO.
It is so ORDERED.

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The Clerk is directed to transmit copies of this Order to any counsel of record..
DATED: April 21, 2014.

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