Clark v. Saad
ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Magistrate Judge Aloi's 10 Report and Recommendation is ADOPTED; this matter is DENIED and DISMISSED WITHOUT PREJUDICE to the Petitioner's right to seek certification from the Third Circuit Court of Appeals to file a second or successive 2255 motion. The Clerk is DIRECTED to enter judgment in favor of the Defendant and to STRIKE this case from the active docket of this Court. Signed by District Judge John Preston Bailey on 5/31/16. (Attachments: # 1 Certified Mail Return Receipt)(copy Petitioner)(cnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO. 2:15-CV-80
J. SAAD, Warden,
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 Michael John Aloi [Doc.
10]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Aloi
for submission of a proposed report and a recommendation (“R&R”). Magistrate Judge Aloi
filed his R&R on May 5, 2016, wherein he recommends this matter be denied and
dismissed without prejudice to the petitioner’s right to seek certification from the Third
Circuit Court of Appeals to file a second or successive § 2255 motion.
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 Aloi’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 May 9, 2016 [Doc. 11]. To date, no
objections have been filed, and the time within which to do has expired. 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 [Doc. 10] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge’s report.
Accordingly, this Court
ORDERS that this matter be DENIED and DISMISSED WITHOUT PREJUDICE to the
petitioner’s right to seek certification from the Third Circuit Court of Appeals to file a second
or successive § 2255 motion. This Court further DIRECTS the Clerk to enter judgment in
favor of the defendant 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: May 31, 2016.
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