Bennett v. USA

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Magistrate Seibert's 7 Report and Recommendation is ADOPTED, and Petitioner's 1 Motion to Vacate, Set Aside or Correct Sentence (2255) is DENIED and DISMISSED WITHOUT PREJUD ICE. The Clerk is DIRECTED to enter judgment in favor of the Respondent and to STRIKE this case from the active docket of this Court. Signed by District Judge John Preston Bailey on 8/29/16. (Attachments: # 1 Certified Mail Return Receipt)(copy Petitioner)(cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
ELLOWOOD EUGENE BENNETT,
Petitioner,
v.

CRIMINAL ACTION NO. 2:90-CR-78
CIVIL ACTION NO. 2:15-CV-45
(BAILEY)

UNITED STATES OF AMERICA,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge James E. Seibert [Crim.
Doc. 360; Civ. Doc. 7]. Pursuant to this Court’s Local Rules, 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 August 1, 2016, wherein he recommends
this Court deny and dismiss the petitioner’s petition for writ of habeas corpus without
prejudice.
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 reflects that service was accepted on August 9, 2016 [Crim. Doc. 361; Civ. Doc.
7]. No objections have been filed to date.1 Accordingly, this Court will review the R&R for
clear error.
Upon careful review of the above, it is the opinion of this Court that the Report and
Recommendation [Crim. Doc. 360; Civ. Doc. 7] should be, and is, hereby ORDERED
ADOPTED for the reasons more fully stated in the magistrate judge’s report. Accordingly,
this Court ORDERS that the petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence [Crim. Doc. 349; Civ. Doc. 1] be DENIED and DISMISSED WITHOUT
PREJUDICE, and petitioner’s Motion for Summary Judgment [Crim. Doc. 359] be
DENIED AS MOOT. This Court further DIRECTS the Clerk to enter judgment in favor of
the respondent and to STRIKE this case from the active docket of this Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se petitioner.
DATED: August 29, 2016.

1

This Court notes that petitioner did file a Motion/ Application for Leave to File
Second or Successive Motion to Vacate [Crim. Doc. 362] on August 26, 2016. However,
upon careful review of the same, this Court cannot possibly construe that filing as
objections to Magistrate Judge Seibert’s R&R.