Slade v. USA

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION 4 : The Court ORDERS that this case be DISMISSED AS MOOT and stricken from the Courts active docket. Further, the Court orders the Clerk to terminate the R&R 4 . The Court directs the Clerk ofCourt to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 6/27/16. (Attachments: # 1 Certified Mail Return Receipt)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RUBIN C. SLADE,
Petitioner,
v.

//

CIVIL ACTION NO. 2:16CV38
(Judge Keeley)

UNITED STATES OF AMERICA,
Respondent.
ORDER DISMISSING CASE AS MOOT
On May 9, 2016, the pro se petitioner, Rubin C. Slade (“Slade”),
filed a motion to vacate pursuant to 28 U.S.C. §§ 2255, which the
Court referred to United States Magistrate Judge Michael J. Aloi for
initial

screening

and

a

Report

and

Recommendation

(“R&R”)

in

accordance with LR PL P 2.
On May 12, 2016, Magistrate Judge Aloi issued an R&R, in which
he

recommended

that

the

Court

dismiss

Slade’s

petition

as

an

improperly filed second or successive § 2255 petition (dkt. no. 4 at
4). The R&R correctly noted that Slade would need to file a petition
pursuant to 28 U.S.C. § 2244(b)(3)(A) with the Fourth Circuit Court
of Appeals before this Court could hear any such second or successive
§ 2255 petition. As Slade had not yet done so, the R&R correctly
concluded that this Court lacked jurisdiction to hear his claim.
The R&R also specifically warned Slade that his failure to
object to the recommendation would result in the waiver of any
appellate rights he might otherwise have on this issue.

Id. at 20.

The parties did not file any objections.1

1

The failure to object to the Report and Recommendation not only
waives the appellate rights in this matter, but also relieves the
Court of any obligation to conduct a de novo review of the issue
presented. See Thomas v. Arn, 474 U.S. 140, 148-153 (1985); Wells v.

SLADE V. UNITED STATES

2:16CV38

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 4]
Subsequent to entry of the R&R, however, and during the pendency
of this Court’s review of it, Slade filed a petition pursuant to 28
U.S.C. § 2244(b) with the Fourth Circuit seeking approval to file a
second or successive petition pursuant to 28 U.S.C. § 2255(h), which
the Fourth Circuit granted. Contemporaneously, Slade filed a new pro
se petition pursuant to 28 U.S.C. § 2255(h), which has been docketed
by the Clerk at 2:16cv53. Accordingly, Slade’s requested relief under
Johnson will be addressed in the Court’s review of his new petition.
Consequently, the Court ORDERS that this case be DISMISSED AS
MOOT and stricken from the Court’s active docket. Further, the Court
orders the Clerk to terminate the R&R (dkt. no. 4) as moot.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
both orders to counsel of record and to the pro se petitioner,
certified mail, return receipt requested.
Dated: June 27, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

Shriners Hosp., 109 F.3d 198, 199-200 (4th Cir. 1997).

2