Fiorito v. Saad

Filing 60

ORDER ADOPTING 51 REPORT AND RECOMMENDATION. This Court ORDERS that respondents Motion for Summary Judgment [Doc. 22 is GRANTED, petitioners Motion for Summary Judgment [Doc. 33 is DENIED, and the petitioners Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. 1 be DENIED and DISMISSED WITHOUT PREJUDICE. 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. This Court hereby DENIES a certificate of appealability. Signed by District Judge John Preston Bailey on 8/28/17. (njz) copy mailed to pro se pet via cert. return rec't mail (Additional attachment(s) added on 8/28/2017: # 1 Certified Mail Return Receipt) (njz).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA ELKINS MICHAEL FIORITO, Petitioner, v. Civil Action No. 2:16-CV-36 (BAILEY) WARDEN SAAD, Respondent. ORDER ADOPTING REPORT AND RECOMMENDATION On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation (“R & R”) of United States Magistrate Judge Michael John Aloi [Doc. 51]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Aloi for submission of a proposed R&R. Magistrate Judge Aloi filed his R&R on July 10, 2017, 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 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). Petitioner filed a Motion for Extension of Time to Respond to the R&R [Doc. 53] on July 24, 2017, which this Court granted by Order [Doc. 54] on July 25, 2017. Therein, this Court granted petitioner leave to file his Objections by August 25, 2017 [Id.]. Petitioner then filed an additional Motion for Extension of Time to File Response [Doc. 58], on August 21, 2017, which this Court denied by Order [Doc. 59] on the same day. Accordingly, petitioner’s Objections were due by August 25, 2017 [Doc. 54], and he failed to timely file the same. 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. 51] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s report. Accordingly, this Court ORDERS that respondent’s Motion for Summary Judgment [Doc. 22] is GRANTED, petitioner’s Motion for Summary Judgment [Doc. 33] is DENIED, and the petitioner’s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. 1] be DENIED and DISMISSED WITHOUT PREJUDICE. 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. As a final matter, upon an independent review of the record, this Court hereby DENIES a certificate of appealability, finding that petitioner has failed to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 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 28, 2017.

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